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Shull v. The University of Queensland

United States District Court, D. Nevada

September 12, 2019

FREDERICK H. SHULL JR., Plaintiff
v.
THE UNIVERSITY OF QUEENSLAND, et al., Defendants

          ORDER (1) GRANTING MOTION TO DISMISS, (2) SETTING DEADLINE FOR AMENDED COMPLAINT, (3) SETTING DEADLINE TO SHOW GOOD CAUSE TO EXTEND THE TIME TO SERVE DEFENDANT MCGHEE IN HIS INDIVIDUAL CAPACITY, AND (4) GRANTING MOTION TO STRIKE [ECF NOS. 96, 105]

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE

         Plaintiff Frederick Shull filed suit against The University of Queensland, the Ochsner Medical Group, Geoff McColl, Leonardo Seoane, Gregory McGhee, and the U.S. Department of Education. ECF No. 15. Shull contends the defendants have engaged in national origin discrimination by requiring him to complete the last two years of a joint Australia/U.S. medical education program in the United States while non-U.S. citizen students are allowed to complete the program in Australia. I previously dismissed all defendants except McGhee and the Department of Education. ECF No. 67. The Department of Education and McGhee in his official capacity (the “federal defendants”) now move to dismiss the claims against them, [1]arguing that the claims are barred by sovereign immunity. Shull responds that he seeks declaratory and injunctive relief for ongoing constitutional violations and thus he need not identify a waiver of sovereign immunity.

         “It is axiomatic that the United States may not be sued without its consent and that the existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206, 212 (1983). Shull concedes there is no waiver of sovereign immunity for damages against the Department of Education or McGhee in his official capacity. I therefore grant the federal defendants' motion to dismiss the complaint to the extent it seeks damages against them. To the extend Shull seeks more than damages, I address each claim in more detail below.

         A. Count One

         Count one asserts a claim under the federal and Nevada declaratory judgment acts and seeks a declaration that “the defendants are liable to me for any and all damages I suffer in the future resulting from the defendants' ongoing practices or activities or ratification of such which discriminate against me on the basis of my national origin.” ECF No. 15 at 32-33. The federal defendants contend neither the state nor the federal declaratory judgment act constitutes a waiver of sovereign immunity. They also argue that declaratory relief is a remedy, not an independent cause of action. Shull responds that he is not requesting damages against the federal defendants, so he need not identify a waiver of sovereign immunity.

         By the complaint's allegations, the declaration Shull seeks is that the defendants are liable to him for damages. Shull has not identified a waiver of sovereign immunity that would allow for such a declaration against the federal defendants. As the party suing the United States, Shull bears the burden of identifying an unequivocal waiver of sovereign immunity. Holloman v. Watt, 708 F.2d 1399, 1401 (9th Cir. 1983). He has not done so for this claim. I therefore grant the federal defendants' motion to dismiss count one.

         B. Count Two

         Count two alleges the defendants violated 42 U.S.C. § 2000d, which prohibits a recipient of federal funds from discriminating on the basis of race, color, or national origin. ECF No. 15 at 33. The federal defendants argue that there is no waiver of sovereign immunity for a claim under § 2000d and that only the recipient of federal funds may be sued under that section. Shull does not specifically respond to this argument and thus he has not met his burden. Consequently, I grant the federal defendants' motion to dismiss count two.

         C. Counts Four, Five, and Ten

         Count four alleges the defendants violated the equal protection clause, count five alleges the defendants violated the substantive due process clause, and count ten alleges an unconstitutional policy and practice. ECF No. 15 at 37-49. Each of these claims states that the constitutional violation is being vindicated “via 42 U.S.C. § 1983.” Id.

         The federal defendants argue that the United States and its employees are not proper defendants under § 1983. They also argue that to the extent these counts could be construed as claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), a Bivens claim cannot be maintained against a federal agency or its employee acting in his official capacity. Shull responds that he is asserting constitutional claims and is seeking injunctive relief to halt ongoing constitutional violations, so no waiver of sovereign immunity is required.

         To the extent Shull's claims are alleged under § 1983 or Bivens, I dismiss them against the federal defendants because (1) § 1983 provides a remedy only “against persons acting under color of state law” and (2) “no Bivens-like cause of action is available against federal agencies or federal agents sued in their official capacities.” Ibrahim v. Dep't of Homeland Sec., 538 F.3d 1250, 1257 (9th Cir. 2008).

         But Shull disclaims that he is seeking damages against the federal defendants and argues that he is seeking only to enjoin ongoing constitutional violations. Shull asserts he need not identify a waiver of sovereign immunity for these types of claims. The federal defendants reply that Shull has not plausibly alleged a basis for injunctive relief because he complains only about the federal defendants' completed actions that took place in the past.

         Although the federal defendants did not raise this argument in their original motion, their reply raises an issue of Article III standing that I must address. See Spencer Enters., Inc. v. United States, 345 F.3d 683, 687 (9th Cir. 2003) (stating federal courts have “the duty to consider subject matter jurisdiction sua sponte in every case, whether the issue is raised by the parties or not”). “To bring suit in federal court, a plaintiff must establish three constitutional elements of standing.” Mayfield v. United States, 599 F.3d 964, 969 (9th Cir. 2010). The plaintiff must (1) “have suffered an injury in fact, ” (2) “establish a causal connection between the injury and the defendant's conduct, ” and (3) “show a likelihood that the injury will be redressed by a favorable decision.” Id. (quotations omitted). Additionally, the plaintiff “must demonstrate standing separately for each form of relief sought.” Friends of the Earth, Inc. v. Laidlaw Envtl. Serv., Inc., 528 U.S. 167, 185 (2000). ‚ÄúPast exposure to harmful or illegal conduct does not necessarily confer standing to seek injunctive relief if the ...


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