Farrukh v. University of South Florida Board of Trustees

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ABDUL REHMAN FARRUKH

Plaintiff,

v. Case No. 8:20-cv-73-VMC-TGW

UNIVERSITY OF SOUTH FLORIDA

BOARD OF TRUSTEES,

Defendant.

____________________________/

ORDER

This matter is before the Court upon consideration of

Defendant University of South Florida Board of Trustees’

(“the Board”) Motion to Dismiss Plaintiff’s Fifth Amended

Complaint (Doc. # 70), filed on April 12, 2021. Plaintiff

Abdul Rehman Farrukh filed a response in opposition on May 3,

2021. (Doc. # 72). For the reasons that follow, the Motion is

granted.

I. Background

Farrukh initiated this action pro se on January 10, 2020,

alleging that the Board, its members, and various employees

of the University of South Florida (“USF”) mistreated him

based on his race and his status as a Pakistani national.

(Doc. # 1). Farrukh filed an amended complaint pro se on

January 21, 2020, alleging substantially the same claims.

(Doc. # 5). At the time he filed his complaint, Farrukh moved

to proceed in forma pauperis, which was referred to United

States Magistrate Judge Thomas G. Wilson. (Doc. # 2).

In a report and recommendation filed April 2, 2020, Judge

Wilson recommended deferring on ruling on the motion to

proceed in forma pauperis, as the amended complaint was a

shotgun pleading that asserted “mostly conclusory allegations

of wrongdoing.” (Doc. # 16). The Court agreed and dismissed

the amended complaint with leave to amend. (Doc. # 20).

Farrukh filed a second amended complaint pro se on June

5, 2020, (Doc. # 25), but Judge Wilson concluded that the

“woefully deficient” pleading remained a shotgun complaint.

(Doc. # 30). Judge Wilson described the allegations

supporting each claim as “conclusory and unsupported,” and at

times “simply baseless.” (Id.). This Court agreed and

dismissed the second amended complaint as a shotgun pleading,

granting Farrukh leave to amend. (Doc. # 33).

Counsel subsequently filed a notice of appearance on

behalf of Farrukh (Doc. # 38), and — represented by counsel

— Farrukh filed a third amended complaint on November 25,

2020. (Doc. # 39). The Board moved to dismiss the third

amended complaint on January 11, 2021, (Doc. # 46), which the

Court granted. (Doc. # 64). The Court dismissed the third

amended complaint as a shotgun pleading without delving into

the merits of the claims. (Id. at 6-7). However, the Court

warned Farrukh that “many of the deficiencies identified by

Judge Wilson [had] not been rectified in the third amended

complaint. Several of the claims lack factual support and

rely on broad, conclusory allegations of wrongdoing.” (Id.).

Farrukh filed a fourth amended complaint on March 5,

2021, (Doc. # 65), which the Court again dismissed as an

impermissible shotgun pleading without addressing the merits.

(Doc. # 66).

Now, Farrukh has filed a fifth amended complaint against

the Board (Doc. # 67), wherein he lists several allegedly

discriminatory events that occurred while he was a student at

USF. This includes a USF instructor accusing Farrukh of

cheating on an exam and dismissing him from the course with

a failing grade (Id. at ¶ 62), the Board upholding this

sanction (Id. at ¶ 69), USF suspending Farrukh’s lawful

immigration status for failure to pay a fee (Id. at ¶¶ 15-

16), and USF’s Registrar’s Office and Cashier’s Office

denying Farrukh’s petition to enroll in spring classes. (Id.

at ¶ 20). Farrukh alleges that he “complained” about the USF

employees responsible for these decisions, “exposed the

discriminatory practices at USF,” and generally “asserted his

rights.” (Id. at ¶¶ 77-84). The Board allegedly retaliated by

deleting Farrukh’s visa profile and “denying him the

opportunity to graduate,” among other things. (Id.).

Accordingly, Farrukh accuses the Board of race and

national origin discrimination in violation of Title VI of

the Civil Rights Act of 1964 (Count I), retaliation in

violation of Title VI of the Civil Rights Act of 1964 (Count

II), race discrimination in violation of the Florida Civil

Rights Act (“FCRA”) (Count III), retaliation in violation of

the FCRA (Count IV), national origin discrimination in

violation of the FCRA (Count V), and breach of contract (Count

VI). (Id.).

The Board moves to dismiss the fifth amended complaint.

(Doc. # 70). Farrukh has responded (Doc. # 72), and the Motion

is ripe for review.

II. Legal Standard

On a motion to dismiss pursuant to Rule 12(b)(6), this

Court accepts as true all the allegations in the complaint

and construes them in the light most favorable to the

plaintiff. Jackson v. Bellsouth Telecomms., 372 F.3d 1250,

1262 (11th Cir. 2004). Further, this Court favors the

plaintiff with all reasonable inferences from the allegations

in the complaint. Stephens v. Dep’t of Health & Human Servs.,

901 F.2d 1571, 1573 (11th Cir. 1990). But,

[w]hile a complaint attacked by a Rule 12(b)(6)

motion to dismiss does not need detailed factual

allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires

more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action

will not do. Factual allegations must be enough to

raise a right to relief above the speculative

level.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal

citations omitted). Courts are not “bound to accept as true

a legal conclusion couched as a factual allegation.” Papasan

v. Allain, 478 U.S. 265, 286 (1986). “The scope of review

must be limited to the four corners of the complaint” and

attached exhibits. St. George v. Pinellas County, 285 F.3d

1334, 1337 (11th Cir. 2002).

Additionally, motions to dismiss for lack of subject

matter jurisdiction pursuant to Rule 12(b)(1) may attack

jurisdiction facially or factually. Morrison v. Amway Corp.,

323 F.3d 920, 924 n.5 (11th Cir. 2003). Where, as here, the

jurisdictional attack is based on the face of the pleadings,

the Court merely looks to determine whether the plaintiff has

sufficiently alleged a basis of subject matter jurisdiction,

and the allegations in the plaintiff’s complaint are taken as

true for purposes of the motion. Lawrence v. Dunbar, 919 F.2d

1525, 1529 (11th Cir. 1990).

III. Analysis

A. State Law Claims

Farrukh has asserted four state law claims against the

Board: race discrimination (Count III), retaliation (Count

IV), and national origin discrimination (Count V) in

violation of the FCRA, and breach of contract (Count VI).

(Doc. # 67).

The Board argues that these state law claims should be

dismissed because it is immune from such suits under the

Eleventh Amendment. (Doc. # 70). The Court agrees.

“It is well established that, absent an express waiver

by the state, the Eleventh Amendment bars state law claims

against a state in federal court.” Maynard v. Bd. of Regents

of Div. of Univs. of Fla. Dep’t of Educ. ex rel. Univ. of S.

Fla., 342 F.3d 1281, 1287 (11th Cir. 2003) (citing Pennhurst

State School & Hosp. v. Halderman, 465 U.S. 89, 98–99 (1984)).

This remains true “even if the court could properly exercise

pendent or supplementary jurisdiction over the state law

claim.” Biggs v. State of Fla. Bd. of Regents, No. 1:96-CV-

185-MMP, 1998 WL 344349, at *1 (N.D. Fla. June 11, 1998)

(internal citation omitted).

Immunity extends to the state itself as well as arms of

the state. Manders v. Lee, 338 F.3d 1304, 1308 (11th Cir.

2003). The Board is defined by statute as “part of the

executive branch of state government,” Fla. Stat. §

1001.71(3); Fla. Stat. § 1000.21(6), therefore it is an arm

of the state for Eleventh Amendment purposes. See Univ. of S.

Fla. Bd. of Trustees v. CoMentis, Inc., 861 F.3d 1234, 1235

(11th Cir. 2017) (“The USF Board is an ‘arm’ of Florida

because the State of Florida defines the USF Board to be a

part of its government, exercises great control over it, funds

it, and pays judgments entered against it.”).

“The test to determine if a state has waived its

sovereign immunity is a stringent one . . . A waiver of

Eleventh Amendment immunity must specifically permit suits in

federal court.” Barnes v. Zaccari, 669 F.3d 1295, 1308 (11th

Cir. 2012) (internal citations and quotation marks omitted).

“[A] State does not consent to suit in federal court merely

by consenting to suit in the courts of its own creation.”

Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense

Bd., 527 U.S. 666, 676 (1999)).

Here, the Court agrees that Florida has not consented to

suit in federal court for any of Farrukh’s state law claims.

1. FCRA Claims

District courts have consistently held that the Florida

Legislature did not waive immunity or consent to be sued in

federal court when it enacted the FCRA. See, e.g., Wells v.

Bd. of Trustees of Fla. Gulf Coast Univ., No. 2:19-cv-859-

JLB-NPM, 2021 WL 883333, at *3 (M.D. Fla. Feb. 8, 2021)

(finding that “Florida has not consented to suit being brought

against it under the FCRA in federal court” (internal citation

omitted)), report and recommendation adopted, No. 2:19-cv-

859-JLB-NPM, 2021 WL 878879 (M.D. Fla. Mar. 9, 2021); Biggs

1998 WL 344349, at *1 (listing cases and “join[ing] its sister

courts in the Middle and Southern Districts of Florida which

have explicitly held that the Eleventh Amendment serves as a

bar to suits against state agencies brought under FCRA, based

on the fact that the Florida Legislature made no waiver of

such immunity and did not consent to be sued in federal court

on claims brought thereunder when it enacted FCRA”).

Accordingly, the Court agrees with the Board that the

Eleventh Amendment bars Farrukh’s FCRA claims in federal

court. Counts III, IV, and V are dismissed for lack of subject

matter jurisdiction.

2. Breach of Contract Claims

The Court comes to the same conclusion for Farrukh’s

breach of contract claim (Count VI). Although Florida has

waived its sovereign immunity for certain breach of contract

claims brought in its own courts, Pan-Am Tobacco Corp. v.

Dep’t of Corr., 471 So. 2d 4, 5 (Fla. 1984), “this waiver

does not extend to breach of contract claims in federal

court.” Wells, 2021 WL 883333, at *3 (citing Pinkston v. Univ.

of S. Fla. Bd. of Trustees, No. 8:18-cv-2651-VMC-SPF, 2019 WL

1411467, *3 (M.D. Fla. Mar. 28, 2019)).

On the contrary, “[t]he law is well settled that the

Eleventh Amendment provides absolute immunity for a state

common law breach of contract action filed in federal court.”

Harrison v. Off. of State Cts. Adm’r, No. 6:06-cv-1878-PCF-

UAM, 2007 WL 1576351, at *5 (M.D. Fla. May 30, 2007). Indeed,

“the Eleventh Circuit has ruled that Florida has not waived

its Eleventh Amendment immunity from suit in federal court

for breach of contract claims.” Pinkston, 2019 WL 1411467, at

*3 (citing Maynard, 342 F.3d at 1288).

Therefore, “[u]nless the language of the contract

expressly provides for a waiver of the state’s immunity from

being haled into federal court, the Eleventh Amendment bars

suit.” Wells, 2021 WL 883333, at *3 (citing Parfitt v. Fla.

Gulf Coast Univ., No. 2:19-cv-727-SPC-NPM, 2020 WL 1873585,

*4 (M.D. Fla. Apr. 15, 2020)). Farrukh cites no such language

and fails to attach any contract that could possibly serve as

a “clear declaration” of the state’s intent to submit to

federal jurisdiction. Id. Indeed, the fifth amended complaint

is unclear what written contract is even at issue in Count

VI. Therefore, this claim is due to be dismissed. See Id.

(dismissing a breach of contract claim for lack of subject

matter jurisdiction due to an absence of contractual language

haling the state into federal court).

Accordingly, the breach of contract claim is barred and

the Board enjoys Eleventh Amendment immunity as to Count VI.

See Maynard, 342 F.3d at 1287 (finding USF immune from suit

in federal court for breach of contract claims because

“Florida has [not] waived its Eleventh Amendment immunity

from suit in federal court for breach of contract”); Harrison,

2007 WL 1576351, at *5 (dismissing a breach of contract claim

and holding that “the Eleventh Amendment deprive[d] the Court

of jurisdiction with regard to all of Plaintiff's breach of

contract claims”). Count VI is dismissed for lack of subject

matter jurisdiction.

B. Federal Claims

Farrukh also asserts two federal claims: race and

national origin discrimination (Count I) and unlawful

retaliation (Count II) in violation of Title VI of the Civil

Rights Act, 42 U.S.C. § 2000d et. seq. (Doc. # 67).

The Board moves to dismiss both counts for failure to

state a claim, arguing that the fifth amended complaint lacks

sufficient facts to plead a plausible claim of discrimination

or retaliation. (Doc. # 70 at 15, 22-23). The Court agrees.

1. Discrimination

Title VI provides that “[n]o person in the United States

shall, on the ground of race, color, or national origin, be

excluded from participation in, be denied the benefits of, or

be subjected to discrimination under any program or activity

receiving Federal financial assistance.” 42 U.S.C. § 2000d.

Even taking all reasonable inferences in favor of Farrukh,

the fifth amended complaint fails to allege a violation of

this provision.

First, Farrukh fails to adequately allege disparate

treatment by the Board. True, Farrukh lists several punitive

measures allegedly taken against him while he was a student

at USF. However, he fails to explain how the Board treated

other students — who were not of Pakistani descent — any

differently. See Miller v. Fla. Hosp. Waterman, No. 5:13-cv-

249-WTH-PRL, 2013 WL 5566063, at *2 (M.D. Fla. Oct. 8, 2013)

(dismissing a Title VI discrimination claim where the

plaintiff failed to identify “how she was treated differently

than any white comparators”).

For example, Farrukh alleges that an instructor accused

him of cheating on an exam, awarded him a zero on the

assignment, and dismissed him from the course with a final

grade of “F” on his transcript. (Doc. # 67 at ¶¶ 62-68).

Farrukh summarily characterizes these actions as

discriminatory, but fails to explain how the instructor

treated other students of a different race more favorably.

(Id.). Likewise, Farrukh accuses the Board of upholding the

cheating sanction for discriminatory reasons, but fails to

allege how the Board’s treatment of him differed from its

treatment of other students in comparable circumstances. (Id.

at ¶¶ 69-74).

The rest of the fifth amended complaint is similarly

conclusory. Farrukh claims that his immigration status was

suspended for failing to pay a particular fee, but fails to

explain how the Board interpreted this requirement

differently for other students. (Id. at ¶¶ 15-16). He claims

that he was prohibited by the Board from enrolling in spring

classes when he was unable to pay tuition, but fails to allege

how the Board treated other students who failed to pay tuition

more leniently. (Id. at ¶ 20).

In these scenarios and others, Farrukh simply asserts

that the Board treated him in a disparate fashion, without

alleging sufficient facts to support this conclusion. Such

“[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements, do not suffice.”

Iqbal, 556 U.S. at 678.

The Court therefore agrees with the Board that Farrukh

fails to adequately allege disparate treatment under Title

VI. Compare Sirpal v. Univ. of Miami, 684 F. Supp. 2d 1349,

1358 (S.D. Fla. 2010) (finding that a plaintiff adequately

stated a claim under Title VI where the complaint alleged

that “the University treated Dr. Potter and Dr. Pinto

differently from Sirpal: it refused to discipline either non-

Indian doctor for allegedly unethical research conduct, but

it suspended Sirpal for alleged research misconduct”).

Furthermore, Farrukh fails to satisfactorily allege

discriminatory intent. “Title VI itself prohibits only

instances of intentional discrimination.” Brook v. Sistema

Universitario Ana G. Mendez, Inc., No. 8:17-cv-171-JSM-AAS,

2017 WL 1743500, at *3 (M.D. Fla. May 4, 2017) (internal

citation omitted). Thus, to state a claim under Title VI, a

plaintiff must allege facts establishing discriminatory

intent. Carr v. Bd. of Regents of Univ. Sys. of Ga., 249 Fed.

Appx. 146, 148 (11th Cir. 2007). “Discriminatory intent may

be established by evidence of such factors as substantial

disparate impact, a history of discriminatory official

actions, procedural and substantive departures from the norms

generally followed by the decision-maker, and discriminatory

statements in the legislative or administrative history of

the decision.” Elston v. Talladega County Bd. of Educ., 997

F.2d 1394, 1406 (11th Cir. 1993).

The fifth amended complaint is bereft of any such

allegations; Farrukh instead insists that “[the Board]

treated [him] disparately from students of race and national

origin different from [him] through its employees’ acts.”

(Doc. # 67 at ¶ 54). The Court is not bound to accept this

legal conclusion as true. Papasan, 478 U.S. at 286. Such an

assertion must be factually supported, and the Court agrees

with the Board that the fifth amended complaint lacks the

necessary allegations.

Judge Wilson has notified Farrukh on two occasions that

his complaint is deficient in this regard. (Doc. # 16 at 5;

Doc. # 30 at 14-15). This Court has also highlighted the

conclusory nature of Farrukh’s allegations and warned Farrukh

that his third amended complaint continued to make legal

conclusions devoid of factual support. (Doc. # 64 at 6-7).

Farrukh has been granted leave to amend several times, and

the last three complaints have been filed with the assistance

of counsel (Doc. ## 39, 65, 67), yet Farrukh has failed to

address these deficiencies. The fifth amended complaint

continues to exhibit the same problems previously identified

by Judge Wilson and this Court. Therefore, the Court finds it

appropriate to dismiss Count I for failure to state a claim.

2. Retaliation

The Court finds Count II deficient for substantially the

same reasons. “To meet the prima facie elements for a claim

of retaliation, a plaintiff must demonstrate that: (1) he

engaged in protected activity; (2) he was subjected to adverse

action and (3) there existed a causal link between the adverse

action and the protected activity.” Chandamuri v. Georgetown

Univ., 274 F. Supp. 2d 71, 84 (D.D.C. 2003) (internal citation

omitted).

Farrukh’s sweeping allegations fail to satisfy the first

element of protected activity. Indeed, it is unclear from the

fifth amended complaint precisely which actions Farrukh is

even claiming as protected activity. Rather than pointing to

concrete events, Farrukh vaguely alleges that he “complained

of discrimination” on various occasions, to mostly

unidentified persons, over a span of several years, about

generalized “discriminatory practices” at USF. (Doc. # 67 at

¶¶ 78-90).

For example, Farrukh alleges that he “challenged” a USF

employee’s claims about Farrukh’s visa status, “asserted his

rights,” and “exposed the discriminatory practices” of the

employee.” (Id. at ¶¶ 77-78). But Farrukh fails to explain

how he asserted these rights, to whom, precisely when the

protected conduct occurred, and the exact nature of his

challenge. (Id.). Similarly, Farrukh alleges that he

“complained” about a staffer to two members of USF’s

international services and “exposed the discriminatory

practices at USF.” (Id. at ¶¶ 81-82). But Farrukh fails to

allege the contents of his complaint, the context in which

they arose, exactly when the complaint was lodged and in what

medium, and what specific practices he raised concerns about.

The rest of the pleading contains similarly broad

assertions and lacks allegations of specific actions or

events. Such a complaint fails to alert the Board of the

precise nature of the claims against it, “and does not provide

[the Board] with sufficient notice to pursue any meaningful

discovery or otherwise defend the case.” Miller, 2013 WL

5566063, at *2. Count II is due to be dismissed for this

reason alone.

Additionally, the fifth amended complaint fails to

adequately plead the third element of causation. As with his

discrimination claim, Farrukh alleges several punitive

measures that the Board allegedly took against him during his

time at USF, such as suspending his lawful immigration

license, upholding a cheating sanction, and barring him from

registering for classes. (Doc. # 67 at ¶¶ 15, 77-82, 89).

However, he fails to allege sufficient facts to support a

causal link between any of these adverse actions and his

allegedly protected conduct. Instead, Farrukh simply

concludes that since he has been complaining about USF’s

discriminatory practices since 2015, any adverse action taken

against him since that year must be related to his complaints,

thus constituting retaliation. (Id. at ¶ 87).

The Court is not obligated to accept such a bare-bones

conclusion as true. Papasan, 478 U.S. at 286. The fifth

amended complaint fails to adequately identify any sort of

causality linking Farrukh’s complaints to the various actions

taken by the Board. Absent such a nexus, the fifth amended

complaint fails to state a claim of retaliation. See Miller,

2013 WL 5566063, at *2 (dismissing a retaliation claim where

the plaintiff “failed to assert when she was retaliated

against, the identity of the person or persons who retaliated

against her, the protected activity she engaged in, and/or

specified the nature and extent of her retaliation”).

Again, these deficiencies have been noted by the

Magistrate (Doc. # 16; Doc. # 30) and the Court (Doc. # 64),

and Farrukh has been given several opportunities, both with

counsel and without, to amend his pleadings accordingly. Yet

the fifth amended complaint continues to allege legal

conclusions without adequate factual support. Therefore, the

Court finds it appropriate to dismiss Count II.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

(1) Defendant University of South Florida Board of Trustees’

Motion to Dismiss Plaintiff’s Fifth Amended Complaint

(Doc. # 70) is GRANTED.

(2) Counts I and II are DISMISSED for failure to state a

claim.

(3) Counts III, IV, V, and VI are DISMISSED for lack of

subject matter jurisdiction.

(4) The Clerk is directed to close this case.

DONE and ORDERED in Chambers in Tampa, Florida, this

27th day of May, 2021.

fan fr. Munahy (noiyh

VIR! IA M. HERNANDEZ’COVINGTON

UNITED STATES DISTRICT JUDGE

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