Opinion
No. 12–P–915.
2013-04-3
Precious OKEREKE v. TRUSTEES OF MASSACHUSETTS COLLEGE OF PHARMACY & HEALTH SCIENCES & others.
By the Court (TRAINOR, KATZMANN & SIKORA, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Precious Okereke, appeals from a Superior Court judge's allowance of motions to dismiss filed by the defendants. The judge dismissed all of the plaintiff's claims either for failure to file suit within the appropriate statute of limitations or for requesting relief under statutes that do not allow for a private right of action. We review the allowance of a motion to dismiss de novo. Massachusetts State Police Commissioned Officers Assn. v. Commonwealth, 462 Mass. 219, 221 (2012). Largely for the reasons set forth by the judge in his thorough memorandum of decision and order on the defendants' motions to dismiss, we affirm.
This action arises from the plaintiff's time at the Massachusetts College of Pharmacy & Health Sciences (MCPHS). The plaintiff was admitted to MCPHS in the fall of 2000 to pursue a pharmacy degree. However, in May of 2002, as a result of her poor academic performance, the plaintiff was dismissed from the program. The alleged conduct that gives rise to the plaintiff's various causes of action all took place between the fall of 2000 and May of 2002. The plaintiff made several unsuccessful attempts at MCPHS to internally appeal this determination. She filed the present lawsuit on March 23, 2011.
Discussion. 1. Constitutional claims. The plaintiff has alleged that the defendants violated her Fifth, Sixth, Eighth, and Fourteenth Amendment rights. The statute of limitations for claims alleging violations of constitutional rights is three years. See G.L. c. 260, § 5B; Messere v. Murphy, 32 Mass.App.Ct. 917, 917–918 (1992). Because the alleged constitutional violations took place between 2000 and 2002 and the plaintiff did not file suit until 2011, the plaintiff's claims are time barred. Moreover, the plaintiff has not put forth any compelling reason for tolling her constitutional claims. She contends only that she will suffer an injustice if her claims are dismissed; however, we agree with the judge, who found that this contention was without merit as the plaintiff has had numerous opportunities in other courts to litigate her claims.
The plaintiff also has filed unsuccessful lawsuits in the United States District Court in various districts (Northern Georgia, Eastern Virginia, Massachusetts, and Vermont).
2. Breach of contract claims. The plaintiff also puts forth various breach of contract claims, including anticipatory breach of contract and material breach of contract. An action for breach of contract accrues at the time of the breach. Chapman v. University of Mass. Med. Center, 417 Mass. 104, 105 (1994). The statute of limitations for breach of contract claims is six years from the date the cause of action accrued. G.L. c. 260, § 2. The judge thus properly found that the plaintiff was time barred from raising any of her contract claims.
3. Tort claims. The plaintiff also alleges tort claims, including infliction of emotional distress, interference with economic advantages, and libel.
The statute of limitations for common-law tort claims is three years from the date the cause of action accrued. G.L. c. 260, § 2A. The judge properly found that the plaintiff's claims are time barred because they are based on events that occurred more than three years prior to her filing her complaint, and equitable tolling does not apply.
The only claim that relates to the trustees of Simmons College is count 12, alleging “interference with economic advantages ... libel[ ].”
4. Racial discrimination claims. The plaintiff alleges that one of her professors discriminated against her on the basis of race. She alleges discrimination under G.L. c. 151B as well as under four Federal statutes (42 U.S.C. §§ 2000a–1 through 2000a–6 [2006], 42 U.S.C. §§ 2000b–2 and 2000b–3 [2006], 42 U.S.C. § 2000c–8 [2006], and 42 U.S.C. § 2000d [2006] ). With regard to the plaintiff's State law claim, the statute requires that a plaintiff bring her claim no later than three years after the alleged unlawful practice occurred. G.L. c. 151B, § 9. Thus, the judge correctly found that the plaintiff had filed an untimely claim.
Additionally, the judge properly found that all of the plaintiff's Federal statutory claims must fail. First, the plaintiff's claim under 42 U.S.C. §§ 2000a–1 through 2000a–6 cannot succeed because the plaintiff does not allege that she fulfilled the statute's notice requirement. See 42 U.S.C. § 2000a–3(c) (requiring notice to appropriate State agency before filing suit). Second, the plaintiff's claims under 42 U.S.C. §§ 2000b–2 and 2000b–3, and 42 U.S.C. § 2000c–8
both fail because neither statute allows for a private right of action. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 381 (1978) (White, J., concurring). Finally, the plaintiff cannot bring a claim under 42 U.S.C. § 2000d, as the claim is untimely. See Govan v. Trustees of Boston Univ., 66 F.Supp.2d 74, 80 (D.Mass.1999) (holding that § 2000d claim was governed by the Massachusetts three-year statute of limitations for personal injury claims).
Additionally, 42 U.S.C. § 2008c–8 applies only to claims addressing segregation, and the plaintiff does not make such a claim. See Gilmore v. Amityville Union Free Sch. Dist., 305 F.Supp.2d 271, 279 (E.D.N.Y.2004).
5. Family Educational Rights and Privacy Act (FERPA) claim. The plaintiff alleged that MCPHS violated her rights under FERPA by denying her access to her education records and by giving her failing grades. However, the judge properly found that the plaintiff cannot bring a claim under FERPA because the statute does not give rise to a private right of action. See Gonzaga Univ. v. Doe, 536 U.S. 273, 290 (2002) (“FERPA's nondisclosure provisions contain no rights-creating language, they have an aggregate, not individual, focus, and they serve primarily to direct the Secretary of Education's distribution of public funds to educational institutions”).
6. Restraint of trade practices. Finally, the plaintiff has alleged that her dismissal constituted a restraint of trade practices. However, a claim for restraint of trade practices under 15 U.S.C. §§ 1, 3, 5, and 7 (2006) or G.L. c. 93, §§ 1–4, must be brought within four years of accrual. See 15 U.S.C. § 15b (2006); G.L. c. 93, § 13. Thus, the judge correctly found that the plaintiff's claim is time barred.
Judgment affirmed.