United States District Court, D. Nevada
FREDERICK H. SHULL JR., Plaintiff
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]
P. GORDON UNITED STATES DISTRICT JUDGE
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, 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.
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.
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.
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.
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.
Counts Four, Five, and Ten
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.”
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.
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).
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.
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). “Past exposure to harmful or illegal conduct
does not necessarily confer standing to seek injunctive
relief if the ...