# Thompson

> District Court, D. Oregon · July 27, 2026

URL: https://www.frixlaw.com/law-library/cases/11409766

## Case

- **Full name:** Kivani Thompson v. Portland Community College
- **Court:** District Court, D. Oregon
- **Decided:** July 27, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KIVANI THOMPSON, Case No. 3:26-cv-00655-JR

Plaintiff, OPINION AND ORDER

v.

PORTLAND COMMUNITY COLLEGE,

Defendant.
__________________________________
RUSSO, Magistrate Judge:
Defendant Portland Community College (“PCC”) moves to dismiss pro se plaintiff Kivani
Thompson’s complaint pursuant to Fed. R. Civ. P. 12(b)(1) and Fed. R. Civ. P. 12(b)(6). For the
reasons stated below, PCC’s motion is granted.
BACKGROUND
Plaintiff was enrolled as a student at PCC during the Summer 2025 and Fall 2025 terms.
On July 17, 2025, approximately four weeks into the summer term, plaintiff “emailed all of his
instructors [notifying] them of the health issues his mother was experiencing and her chest pains
she was having.” Am. Compl. pg. 1 (doc. 8). On September 4, as the summer term was ending,
plaintiff again “emailed all of his instructors [specifying he] expected an extension for the work
he was due to complete.” Id. at pg. 2. Every instructor immediately offered different options for
extensions and solutions to help plaintiff complete the assigned work:

● “Paul Wheatcraft responded with ‘the best that I can do is allow you until this
Sunday to submit the missing assignments and quizzes.’”

● “Greg Kerr gave Mr. Thompson permission to complete the assignments
necessary for a passing grade.”

● “Adrian Rodriguez responded to Mr. Thompson with ‘If you need more time, I
can give you access to class after grades are submitted and I can update your grade
when you feel you're done.’”

Id.
On September 6, “Greg Kerr stated ‘I will accept [missing assignments] as a reply to this
email by no later than 5:00pm.” Id. Plaintiff was “hindered” and ultimately did not submit those
assignment until “1 minute after the deadline and Greg Kerr stated ‘I was specifically looking out
for your files until 5:00pm, and when I didn’t see them, I submitted grades at 5:01pm.’” Id.
On September 7, plaintiff “emailed Paul Wheatcraft . . . stat[ing] ‘I just reread the original
email and the quizzes were not opened up for me to turn in.’” Id. Mr. Wheatcraft responded the
same day remarking: “unfortunately, we are out of time, and I have to submit grades this morning.”
Id. But he did inform plaintiff “that he reopened the quizzes and Mr. Thompson can find the
password to the quizzes within the lecture videos he would watch before completing the quizzes.”
Id.
On September 23, “Adrian Rodriguez informed Mr. Thompson that his work was created
and turned in using artificial models and the evidence he has to prove it, is the fact that the work
possessed fictional bibliographic references.” Id. Also on September 23, plaintiff emailed “Richard
Zhao on the first day of class that he could not attend due to outside extenuating circumstances
involving a legal situation Mr. Thompson could not control.” Id. “Richard Zhao responded with
the claim ‘there is no penalty for missing the first day of class.’” Id.
On September 30, “Charisse Loughery emailed Mr. Thompson after he complained about
the professors who instructed him and stated ‘we are reaching out to see if we can learn more

information about what occurred and your desired next steps.’” Id. Plaintiff “responded with the
factual information he possessed at the time and began to shift focus to the situation concerning
his extenuating circumstances.” Id. at pg. 3. Ms. Loughery indicated she would “move these
concerns to the program deans that oversee the areas for these faculty members.” Id.
Plaintiff thereafter received additional assurances his concerns were being reviewed and
that “the college takes them seriously.” Id. On October 14, “Josh Laurie completed his
investigation and results showed ‘the allegations of defamatory remarks, negligence,
incompetence, and abuse of power are not substantiated.’” Id. Separately, “GD Lyer completed
her investigation and her results showed ‘the allegations of defamatory remarks, negligence or
incompetence, and abuse of power appear to be unfounded based on the evidence reviewed.’” Id.

On November 1, plaintiff “was arrested due to his extenuating circumstances and was
unable to complete the rest of his fall term classes.” Id. On November 10, plaintiff “was notified
through email communications that his SAP standing was in warning or probationary status.” Id.
On November 15, plaintiff “was notified via email that he could not complete any remaining
coursework for the fall term as it was too late to obtain a passing grade according to the instructors
course syllabus.” Id.
On December 8, plaintiff “enrolled in winter term and planned to attend in order to continue
to pursue his criminal justice degree.” Id. On December 18, he “received an email from the
financial aid office stating ‘your courses for next term are at risk of being deleted. Your financial
aid has been suspended and you have not made other payment arrangements with the college.’”
Id. The following day, plaintiff “attempted to file multiple appeals for the situation concerning his
SAP status and they were automatically denied due to federal policy regarding his GPA.” Id. On
December 30, plaintiff “was informed that his winter term registration had been deleted [because

he] did not meet PCC’s payment requirement.” Id.
On January 5, 2026, plaintiff “emailed multiple departments to fix the situation regarding
his SAP status.” Id. The next day, “Jennifer McBratney responded with an email stating ‘due to
the detailed nature of your requests, it will involve the collaboration of several PCC departments
to provide further information.’” Id.
On February 18, “Christina Shafer emailed Mr. Thompson about the investigation and
stated that she spoke with Richard Zhao and he made remarks that equate to my participation and
attendance in the term.” Id. On February 26, “Richard Zhao responded to Mr. Thompson’s inquiry
about his participation in the investigation and Zhao stated ‘I want to say that I have never been
approached by anyone about my input to the appeal.’” Id. at pg. 4. He “also stated ‘when I submit

the final letter grade, I will have to put in the last day of attendance for students who failed the
class in order to proceed.’” Id. Mr. Zhao then “altered Mr. Thompson’s academic record and stated
the following: ‘you never attended classes, and I had no choice but to put in the date of our first
class meeting.’” Id.
On March 1, plaintiff “had a conversation with Jennifer McBratney on the phone, where
they both agreed the course would be removed from his transcript and the pending debt would
increase to $6.2K.” Id. On March 8, “Jennifer McBratney emailed Mr. Thompson and said ‘I would
highly recommend working on the balance while we continue the conversation about your class
with Richard Zhao.’” Id. (internal brackets omitted).
Plaintiff initiated this action against PCC on April 2, 2026. On April 7, “Christina Shafer
emailed Mr. Thompson and stated, ‘After evaluating the details of your case, the college will not
be making any further changes to your record.’” Id.
On April 27, plaintiff filed his amended complaint, alleging the following claims:

(1) deprivation of “the right to due process of law, the right to equal protection of the laws, the
right to be free from compelled speech, and the right to informational privacy violation” under 42
U.S.C. § 1983; (2) Monell liability under 42 U.S.C. § 1983; (3) conspiracy under 42 U.S.C. §
1985(3) due to “coordinating false statements, withholding or altering academic information,
denying promised extensions, misrepresenting instructor communications, obstructing Plaintiff’s
ability to complete coursework, denying appeals without review, and imposing academic and
financial penalties based on fabricated information”; and (4) negligence pursuant to 42 U.S.C. §
1986. Id. at pgs. 4-6.
STANDARDS
Where the court lacks subject matter jurisdiction, the action must be dismissed. Fed. R.

Civ. P. 12(b)(1). The party who seeks to invoke the subject matter jurisdiction of the court bears
the burden of establishing that such jurisdiction exists. Lujan v. Defs. of Wildlife, 504 U.S. 555,
561 (1992). The court may hear evidence regarding subject matter jurisdiction and resolve factual
disputes where necessary. Kingman Reef Atoll Invs., L.L.C. v. United States, 541 F.3d 1189, 1195
(9th Cir. 2008).
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must
dismiss the action. Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss, the complaint must
allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is
liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters,
719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than
a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed
true.” Ashcroft v. Iqbal, 556 U.S. 662, 680–81 (2009). Rather, to state a plausible claim for relief,

the complaint “must contain sufficient allegations of underlying facts” to support its legal
conclusions. Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See,
e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the
pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block,
832 F.2d 1132, 1136 (9th Cir. 1987). A pro se plaintiff’s claims may nonetheless be dismissed
with prejudice where it appears beyond doubt the plaintiff can prove no set of facts that would
entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
PCC argues this case should be dismissed because: (1) “the Eleventh Amendment prevents

Thompson from bringing the claims he has alleged,” and (2) the “Amended Complaint fails to
allege sufficient facts to state a claim for relief.” Def.’s Mot. Dismiss 2 (doc. 12).
Plaintiff argues “PCC waived immunity by accepting federal funds,” denoting “[c]ourts
consistently hold that immunity is waived for claims under: Title VI, Title IX, Section 504 of the
Rehabilitation Act, ADA Title II, [and] FERPA.” Pl.’s Resp. to Mot. Dismiss 1 (doc. 15). Plaintiff
also invokes “Ex parte Young [because he seeks] prospective remedies, not retrospective
damages.” Id. at 2. He then concludes that his “FERPA-linked record-handling violations,”
“retaliation claim under federal funding statutes,” and “Monell-style theory of systemic failures”
are adequately plead. Id. at 2-3.
Thus, as an initial matter, plaintiff’s opposition is either silent or does not meaningfully
address several defects specifically raised by PCC’s motion. See generally id.; see also Justice v.
Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff’d, 720 Fed.Appx. 365 (9th
Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court

may treat that argument as conceded”) (citation and internal quotations and brackets omitted).
Moreover, plaintiff impermissibly appears to plead new claims for retaliation and FERPA
violations via his response brief.1 See Schneider v. Cal. Dep’t of Corr., 151 F.3d 1194, 1197 n.1
(9th Cir. 1998) (when reviewing the sufficiency of pleadings, “a court may not look beyond the
complaint to a plaintiff's moving papers”). The amended complaint is therefore subject to dismissal
on these bases alone.
I. Eleventh Amendment
Public universities are considered “arm[s] of the State of Oregon for Eleventh Amendment
immunity purposes.” Rounds v. Or. State Bd. of Higher Educ., 166 F.3d 1032, 1035 (9th Cir.
1999). And “[s]tates are protected by the Eleventh Amendment from suits brought by citizens in

federal court.” Douglas v. Cal. Dep’t of Youth Auth., 271 F.3d 812, 817 (9th Cir. 2001). Critically,
the State of Oregon has not waived its immunity to suits brought under 42 U.S.C. § 1983, 42

1 Even so, neither the pleadings nor plaintiff’s response brief contain facts intimating PCC
retaliated against him. The amended complaint flows from the premise that plaintiff was denied
continued federal financial aid because of his instructors’ malfeasance in reporting grades.
Critically, he does not assert that his instructors assigned him poor grades because of any protected
activity. And it is well-established that the Family Educational Rights and Privacy Act – or FERPA
– does “does not create a private right of action, which means that an individual is not able to bring
suit to enforce the provisions of that Act.” Perkins-Gottfried v. Southern Or. Univ., 2026 WL
1882925, *3 (D. Or. June 30, 2026) (collecting cases); see also Cherry v. Clark Cnty. Sch. Dist.,
2012 WL 4361101, *5 (D. Nev. Sept. 21, 2012) (FERPA “protects educational records and
personally identifiable information of students from improper disclosure”; it “is not a law which
absolutely prohibits the disclosure of educational records [but rather] imposes a financial penalty
for the unauthorized disclosure of educational records’) (citations and internal quotations omitted).
U.S.C. § 1985, or 42 U.S.C. § 1986. Rote v. Comm. on Jud. Conduct & Disability of the Jud. Conf.
of the U.S., 577 F.Supp.3d 1106, 1125 (D. Or. 2021).
As a result, any claim for damages against PCC or its employees is barred by sovereign
immunity. See Committee v. Or. State Univ., 2018 WL 4623159, *2 (D. Or. Sept. 26, 2018)

(“public universities are entitled to sovereign immunity” and “employees acting within their
official capacities are shielded from suit”) (citations omitted); Cerrato v. S.F. Cmty. Coll. Dist., 26
F.3d 968, 975 (9th Cir. 1994) (Eleventh Amendment barred the plaintiff’s § 1983, § 1985, and §
1986 claims against a community college school district); see also Atascadero State Hosp. v.
Scanlon, 473 U.S. 234, 246-47 (1985), abrogated on other grounds as recognized in Lane v. Pena,
518 U.S. 187, 198 (1996) (“the mere receipt of federal funds cannot establish that a State has
consented to suit in federal court”); Ali v. Carnegie Inst. of Wash., 967 F.Supp.2d 1367, 1384 (D.
Or. 2013) (university’s receipt of federal funds to perform research did not deprive it of sovereign
immunity).
Plaintiff’s reliance on Ex parte Young likewise does not salvage his claims because PCC

is the sole defendant. Ex parte Young provides a limited exception to the Eleventh Amendment
that “allows citizens to sue state officers in their official capacities for prospective declaratory or
injunctive relief . . . for their alleged violations of federal law.” Ass’n des Eleveurs de Canards et
d’Oies du Quebec v. Harris, 729 F.3d 937, 943 (9th Cir. 2013) (citation and internal quotations
omitted). In other words, Ex parte Young applies to individual state officials (none of which are
named as defendants here) and only when the official “ha[s] some connection with the enforcement
of the act.” Id. at 943. PCC’s motion is granted in this regard.
II. Other Pleading Deficiencies
Even presuming sovereign immunity did not operate to bar plaintiff’s claims, the amended
complaint is deficient in myriad other respects. First, plaintiff has not cited to, and the Court is not
aware of, any authority recognizing a constitutionally protected right to continued enrollment at
PCC. To the contrary, the U.S. Supreme Court has declined to carve out a fundamental right to

education. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 35 (1973) (“[e]ducation, of
course, is not among the rights afforded explicit protection under our Federal Constitution. Nor do
we find any basis for saying it is implicitly so protected”).
Additionally, the Ninth Circuit has held that academic dismissals do not require a hearing
and meet the requirements of procedural due process where the dismissal decision appears to be
“careful and deliberate.” Oyama v. Univ. of Haw., 813 F.3d 850, 875 (9th Cir. 2015). Here, plaintiff
alleges that he raised issues surrounding his courses that resulted in several communications with
PCC and ultimately an investigation. Am. Compl. pgs. 2-4 (doc. 8). Ultimately, though, plaintiff
was unable to complete the Fall 2025 term due to pending criminal charges and, as a result, he was
not qualified to receive any additional financial aid or enroll in the Winter 2026 term. Id. at pgs.

3-4. Accordingly, the amended complaint does not allege that PCC dismissed plaintiff because of
his academic standing or because of discipline; rather, he (temporarily) could not enroll until he
resolved his outstanding balance owed to PCC. Stated differently, the amended complaint alleges
that PCC communicated with plaintiff, sought his version of events, and informed him of their
decisions and the underlying reasons, which is all the law requires in this context. See, e.g., Oyama,
813 F.3d at 875.
And the amended complaint does not allege any well-plead facts demonstrating PCC
treated other students differently or that plaintiff is a member of a protected class, thereby
foreclosing any claim under the Equal Protection Clause, 42 U.S.C. § 1985, or 42 U.S.C. § 1986.
See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (to establish an equal protection
claim, “a plaintiff must show that the defendants acted with an intent or purpose to discriminate
against the plaintiff based upon membership in a protected class”); O’Handley v. Padilla, 579
F.Supp.3d 1163, 1185 (N.D. Cal. 2022), aff’d, 62 F.4th 1145 (9th Cir. 2023) (outlining the pleading

requirements of a conspiracy claim under § 1985 and noting that, among other elements, the
plaintiff must “show some racial, or perhaps otherwise class-based, invidiously discriminatory
animus lay behind the conspirators’ action”) (citation and internal quotations omitted); see also
Dooley v. Reiss, 736 F.2d 1392, 1396 (9th Cir. 1984) (affirming the dismissal of a § 1986 claim
“[b]ecause plaintiffs failed to state a claim under section 1985”).
Finally, the amended complaint does not contain any facts evincing plaintiff was compelled
to speak or sustained a privacy violation. In fact, plaintiff does not identify what coursework or
academic requirements necessitated the submission of personal information. Rather, the only
sharing of information alleged relates to details plaintiff chose to disclose for the purposes of either
obtaining coursework extensions or lodging complaints/appeals.

By extension, plaintiff’s Monell claim is also subject to dismissal, since it is premised on
inadequately plead violations. Cf. Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994) (“[w]hile the
liability of municipalities doesn’t turn on the liability of individual officers, it is contingent on a
violation of constitutional rights”). Plaintiff’s Monell allegations are also largely comprised of
labels and conclusions, which is insufficient. See Mendoza v. City of Portland, 2021 WL 6338484,
*2-3 (D. Or. Dec. 2, 2021), adopted by 2022 WL 93852 (D. Or. Jan. 10, 2022) (conclusory
allegations about express or implied city policies are inadequate and “a single constitutional
deprivation . . . ordinarily is insufficient to establish [liability] under Monell”).
Notwithstanding the amended complaint’s deficiencies, the Court finds that dismissal with
prejudice is not proper. Plaintiff’s brief refers to additional facts and/or legal theories that may
cure at least some of the defects outlined herein. Further, he has not had the opportunity to seek
amendment with the benefit of Court guidance. As such, the Court cannot conclude, at least at this

stage in the proceedings, that the amended complaint’s shortcomings are incurable as a matter of
law.
CONCLUSION
For the foregoing reasons, PCC’s Motion to Dismiss (doc. 12) is granted. PCC’s request
for oral argument is denied as unnecessary. Any motion to amend the complaint must be filed
within 30 days of the date of this Opinion.
IT IS SO ORDERED.
DATED this 27th day of July, 2026.

_______/_s/_ J_o_l_ie_ _A_._ R_u_s_s_o_______
Jolie A. Russo
United States Magistrate Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11409766. Public record. Not legal advice.