United States District Court, D. New Jersey
August 23, 2005.
MICHAEL OKPOR, Plaintiff
RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY Defendant.
The opinion of the court was delivered by: FREDA WOLFSON, Magistrate Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] MEMORANDUM OPINION
Presently before the Court is a motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or in the alternative, a
motion for summary judgment pursuant to Fed.R.Civ.P. 56(b)
brought by Rutgers, The State University of New Jersey ("Rutgers"
or "Defendant") on the Complaint of Michael Okpor, pro se
("Plaintiff"). Plaintiff seeks relief under 42 U.S.C. § 1983 ("§
1983"), alleging that Defendant's School of Business violated his
procedural due process rights, breached an express contract and
violated an implied covenant of good faith and fair dealing. On
February 14, 2005, Plaintiff filed an Amended Complaint to
include a civil rights violation under 42 U.S.C. § 1981 ("§
1981").*fn1 The Court has considered the parties' papers
pursuant to Fed.R.Civ.P. 78, and for the reasons stated below, the Plaintiff's Complaint
is dismissed in its entirety with prejudice.
Plaintiff was a student at Defendant's undergraduate School of
Business from fall 1997 until his final dismissal in January,
2002. While attending Rutgers, Plaintiff failed numerous classes,
yet consistently requested make-up examinations and late
withdrawals from his courses. After the fall 2001 semester,
Plaintiff's grade-point average fell below the required 2.0
minimum for the second time, which resulted in Plaintiff's
second, and final, dismissal from Rutgers. Plaintiff asserts in
his initial Complaint that (1) Defendant violated his procedural
due process rights by failing to abide by its own guidelines for
withdrawal from classes, (2) Plaintiff had an express contract
with Defendant, which Defendant breached by dismissing Plaintiff,
and (3) Defendant violated an implied covenant of good faith and
fair dealing in its contractual relationship with Plaintiff. In
his Amended Complaint, without asserting any additional facts,
Plaintiff alleges that Defendant "violated the equal protection
clause of the fourteenth amendment, [T]itle VI of the [C]ivil
[R]ights Act of 1964 and 42 U.S.C. § 1981." Pl. Am. Compl. at 2.
A. Procedural history
Plaintiff commenced an action in the Chancery Division of the
Superior Court of New Jersey on or about January 21, 2004.*fn2 See Sponzilli Cert. Ex.
A. In his complaint, Plaintiff sought an order compelling Rutgers
to allow Plaintiff to retake all the courses that he had failed
and to change all of his grades from "F" (fail) to "W"
(withdrawal). Id. On March 22, 2004, the state court denied
Plaintiff's application for injunctive relief against Defendant.
See Sponzilli Cert. Ex. B.
On March 30, 2004, Rutgers filed and served its answer to
Plaintiff's complaint in the state court action. See Sponzilli
Cert. Ex. C. On or about March 30, 2004, Plaintiff filed an
amended complaint alleging that his "unfair academic dismissal"
from Rutgers was "a direct and proximate result of the negligence
of the [D]efendant's staff members," and that consequently,
Plaintiff "suffered grievous financial loss, anxiety, and
depression." Sponzilli Cert. Ex. D. Despite allegations of
negligence in his amended complaint, Plaintiff never filed a
Notice of Tort Claim with Rutgers, as required by N.J.S.A.
59:1-1, et seq. See Denner Cert. Ex. 4, ¶¶ 4, 5.
On November 16, 2004, Plaintiff filed a second amended
complaint in state court, incorporating his previous claims and
adding allegations of breach of contract, breach of covenant of
good faith and fair dealing, and a claim under New Jersey's
Consumer Fraud Statute, N.J.S.A. 56:8-2.*fn3 See Sponzilli
Cert. Ex. H. According to Plaintiff, he had an express contract
with Rutgers because Plaintiff's payment of tuition fees
constituted consideration for Defendant providing an education
and a degree. Id. Plaintiff alleged that Defendant breached
this contract by dismissing him from the University. Id.
Plaintiff further claimed that the "contract" contained an
implied covenant of good faith and fair dealing, which Defendant also
breached by expelling him. Id. Lastly, Plaintiff alleged that
Defendant's breach of the implied covenant of good faith and fair
dealing constituted an unconscionable business practice in
violation of New Jersey's Consumer Fraud Statute. Id.
On November 17, 2004, Defendant filed a motion for summary
judgment in state court. While Defendant asserts that "Plaintiff
moved for permission to amend [his complaint] a second time,"
Def. Br. at 8, it is not entirely clear from the record whether
Plaintiff made such motion prior to filing his second amended
complaint on November 16, 2004. According to Defendant,
Plaintiff's motion to amend his complaint was consolidated with
Defendant's motion for summary judgment. See Def. Br. at 8.
After hearing oral argument on December 17, 2004, the state court
denied Plaintiff's motion requesting leave to amend his complaint
for a second time, granted Defendant's motion for summary
judgment and dismissed with prejudice all of Plaintiff's claims.
See Sponzilli Cert. Ex. G, I. The state court based its
dismissal of Plaintiff's claims on Plaintiff's failure to file
the 90-day Notice of Tort Claim as required by the Tort Claims
Act and failure to file a complaint within the applicable
two-year statute of limitations period. See 12/17/04 Tr. (Pl.
Opp. Ex. 1) at 53-55. The state court also found that the
dismissal of Plaintiff's complaint rendered Plaintiff's motion to
amend his complaint moot.*fn4 See id. at 56.
On January 21, 2005, the state court heard oral argument on
Plaintiff's motion for reconsideration of its decision dismissing
Plaintiff's claims. While that motion was still pending,
Plaintiff filed the instant action in this Court on January 10,
2005, asserting the same allegations and seeking the same relief as made in his state court complaint.
See Pl. Compl. Plaintiff's motion for reconsideration was
ultimately denied by the state court on January 27, 2005. See
Sponzilli Cert. Ex. J.
On February 14, 2005, Plaintiff filed an Amended Complaint in
this action asserting violations of § 1981. See Pl. Am. Compl.
On May 9, 2005, Plaintiff requested that this Court dismiss his §
1983 action without prejudice pending his appeal in the state
court. See Pl. 4/27/05 Resp. to Def. Mot. Summ. J. ("Pl. Resp.
#1"), ¶ 16.
On May 19, 2005, Plaintiff filed a second response to
Defendant's motion, alleging that Defendant also violated
42 U.S.C. § 1985 and § 1986.*fn5 See Pl. 5/19/05 Resp. to
Def. Mot. Summ. J. ("Pl. Br. #2"), ¶ 15. Plaintiff alleges that
Defendant racially discriminated against him because he is
African-American, and denied him the right to complete his
courses. Id. ¶¶ 2, 4. Plaintiff also claims that Defendant's
School of Business and Academic Dean Samuel Rabinowitz conspired
to deprive Plaintiff of the right to complete his courses because
of Plaintiff's race. See Pl. Br. #2, ¶ 4.
B. Plaintiff's academic history
Plaintiff transferred to Rutgers University School of Business
from Camden Community College in the fall of 1997. See Denner
Cert. Ex. 1, ¶ 5. From 1997 through his final dismissal from
Rutgers in 2002, Plaintiff asked for eleven grade changes and
repeatedly requested late withdrawals from courses and make-up
examinations due to his failure to attend classes and to take
examinations on the scheduled dates. Id. ¶¶ 5, 6.
According to Rutgers' Academic Policies and Procedures,
students may change their courses without any adverse consequences until the end of the "drop/add
period," which is the sixth day of the school term. See Denner
Cert. Ex. 2 at 1 (150); Denner Cert. Ex. 1, ¶ 9; Denner Cert. Ex.
2. If a student wishes to withdraw from a course after the end of
the "drop/add period," the student must follow the procedures
outlined in the Academic Policies and Procedures before the end
of the eighth week of the school term. See Denner Cert. Ex. 2
(151). Withdrawals from courses are not permitted or recognized
during the final two weeks of the school term. Id. at 3 (152).
Students who drop a course after the eighth week will receive a
failing grade, which is then computed into the student's
cumulative grade-point average. Id.; Denner Cert. Ex. 1, ¶ 9.
When a student fails to fulfill the course requirements, an
"Incomplete" or "IN" grade is assigned to the student's record.
Denner Cert. Ex. 2 at 3 (152). It is the student's responsibility
to "consult with the instructor to arrange for the conversion of
the "IN" grade to a permanent grade." Id. An "Incomplete" which
is not remedied by the date outlined in the Academic Policies and
Procedures is automatically converted into a failing grade. Id.
In addition, a student who misses an examination or fails to meet
course requirements must receive permission from the professor to
take a make-up examination or obtain an extension of time for the
submission of a written product. See Denner Cert. Ex. 1, ¶ 12.
According to Defendant, make-up examinations may take place after
the term concludes, but a student will rarely be permitted to
extend a make-up beyond one additional semester. Id.
Here, Plaintiff requests changes for grades in courses he took
as long as five years ago. See Pl. Compl. Superior Ct. ¶ 23.
According to Larry R. Gaines, Rutgers' Associate Dean for
Administration and Finance, "the request for grade changes over a
five year period is unheard of." Denner Cert. Ex. 1, ¶ 13.
Moreover, Associate Dean Gaines has stated that Plaintiff's
attempt to cleanse his record of undesirable grades would compromise the
integrity of the University's grading policies and constitute a
misrepresentation of Plaintiff's academic performance to other
academic institutions and Plaintiff's prospective employers.
Plaintiff, on the other hand, claims that he was unable to
complete his course requirements because of injuries sustained
from multiple car accidents. Pl. Br. ¶ 1. However, Plaintiff
admits that he never went to Rutgers' office for disabled
students to seek a disabled status. Okpor Dep. at 109. Plaintiff
claims that he complied with Rutgers' guidelines regarding
retroactive withdrawal from courses without academic penalty, and
that he submitted doctors' notes regarding the injuries and
disabilities resulting from his accidents. Id. ¶¶ 2, 3.
According to Plaintiff, Rutgers treated such notes as falsified
and thus gave Plaintiff failing grades in his courses. Id. ¶ 4;
Pl. Compl. ¶ 6. According to Defendant, however, the school
questioned the validity of the doctors' notes because the notes
were "written on prescription forms, or [were] unaddressed and
simply state[d] that Plaintiff [was] disabled for a predicted
period of time based on unspecified conditions." Denner Cert. Ex.
1, ¶ 15.
Defendant claims that although Plaintiff had numerous
opportunities to take make-up examinations, he failed to complete
the scheduled make-ups. See Denner Cert. Ex. 1, ¶¶ 21, 23. For
example, Plaintiff failed to appear at a prearranged make-up
examination in the spring term of 1998. Id. ¶ 23. Moreover,
Defendant contends that Plaintiff did not adequately explain why
his physical injuries only affected his ability to complete an
examination in one course, and not all four courses during the
fall term of 1997. Id. ¶ 20. Similarly, during the spring term
of 1998, Plaintiff failed to attend final examinations in two of
his classes, but managed to take the finals in two of his other
courses, either on the scheduled exam dates or at prearranged
make-ups. Id. ¶ 28.
Another example of Plaintiff's poor academic history is
evidenced by his final grade of "F" in Business Communications in the fall 1998 semester. According
to Defendant, Plaintiff attended only five of fifteen classes and
completed only one of three quizzes given by the professor. See
Denner Cert. Ex. 3 (Urban Cert.), ¶¶ 4-8. Plaintiff also failed
to complete a research project, attend the final class and submit
the final written portion of the research project. See id.
The professor of the course, Anthony Urban, Jr., stated that
Plaintiff had submitted a written research project at the end of
the semester, but admitted to copying another student's work for
his project. Id. ¶ 10.
Plaintiff was academically dismissed on February 16, 1999 for
failing to maintain a minimum grade point average of 2.0, as
required by the University. See Denner Cert. Ex. 1, ¶ 37; Ex. 2
at 6 (155). Plaintiff then enrolled as a non-matriculating
student at Rutgers during the summer session of 1999 and was
readmitted to the University after obtaining a "B" in each of the
two courses he took that summer. See Denner Cert. Ex. 1, ¶ 39.
However, the record shows that Plaintiff again encountered
academic difficulty upon his readmittance to the school. For
instance, he received a "D" in Operations Management because he
only attended nine of fifteen class meetings, missed
examinations, and received grades of "D" and "F" in his make-up
examinations. See Denner Cert. Ex. 3 (Scarborough Cert.), ¶¶
4-6. On February 8, 2001, Plaintiff was dismissed from the
University for the second time. See Denner Cert. Ex. 1, ¶ 50.
However, Defendant ultimately rescinded Plaintiff's dismissal
because Plaintiff took a make-up final examination in one of his
classes and retroactively raised his grade point average above
the required 2.0 minimum. Id. ¶ 51.
It is unclear whether Plaintiff attended classes after the
February 8, 2001 notice of dismissal. Id. at 53. The record
indicates that on May 2, 2001, the Associate Dean advised
Plaintiff that he could either withdraw from all of his courses
for the spring term of 2001 without financial or academic
penalty, or he could complete his courses for the term. Id. ¶¶
54-55; Denner Cert. Ex. 2 Ex. K. Although Plaintiff was informed that he may be at academic risk
if he chose to pursue his spring 2001 courses, see Denner Cert.
Ex. 1, ¶ 57; Denner Cert. Ex. 2 Ex. K, Plaintiff chose to take
his final examinations for these classes. See Denner Cert. Ex.
1, ¶ 65. Plaintiff failed two of these exams and only passed one.
See id. Plaintiff then attempted to retroactively withdraw
from one of the courses he failed after the conclusion of the
semester an act not permitted under the University's agreement
governing Plaintiff's readmission to Rutgers on May 2, 2001.
Id. ¶ 64; Denner Cert. Ex. 2 Ex. K.
In the fall term of 2001, although Plaintiff failed or received
incompletes in most of his courses, he sought to retroactively
withdraw from such classes. See Denner Cert. Ex. 1, ¶ 76. On
January 21, 2002, Plaintiff was notified of his final dismissal
from Rutgers. Id. ¶ 77. According to Defendant, no further
readmission was permitted given the circumstances of Plaintiff's
dismissal. Id. The record indicates that Plaintiff continued to
take courses as a non-matriculating student during the summer
sessions of 2002 and 2003. Id. ¶¶ 79, 80.
The core of Plaintiff's argument is that his medical reasons
constituted acceptable grounds for withdrawal from classes under
Rutgers' Guidelines for Withdrawal Petitions. Because Defendant
denied Plaintiff's petitions for withdrawals, which were
accompanied by doctors' notes, Plaintiff alleges that Defendant
violated his procedural due process rights under § 1983 and that
Defendant breached an express contract and the implied covenant
of good faith and fair dealing.*fn6 See Pl. Compl. However, since Plaintiff's § 1983 claim was already adjudicated
and dismissed on the merits in state court, and since his § 1981
claim rests on the same factual allegations asserted in the
already adjudicated § 1983 claim and does not state a separate
cause of action under § 1981, Plaintiff's Amended Complaint in
this action must be dismissed in its entirety.
A. Standard of review
Defendant has framed its motion as a motion to dismiss under
Fed.R.Civ.P. 12(b)(1) and 12(b)(6), or, in the alternative, a
motion for summary judgment under Fed.R.Civ.P. 56(b). When
making a determination under Rule 12(b)(6), the Court cannot
consider matters outside of the pleadings. When, as here, both
parties present extraneous material as part of their motion or
opposition, this Court has the discretion to accept the
extraneous material and convert the motion into one for summary
judgment. See Fed.R.Civ.P. 12(b); Koernschild v. W.H.
Streit, Inc., 834 F.Supp. 711, 713-14 (D.N.J. 1993); Rose v.
Bartle, 871 F.2d 331, 339-40 (3d Cir. 1989); Wiley v. Hughes
Capital Corp., 746 F.Supp. 1264 (D.N.J. 1990); Elysian Federal
Savings v. First Interregional Equity, 713 F.Supp. 737, 740
(D.N.J. 1989); 5 Charles Wright & Arthur Miller, Federal Practice
and Procedure § 1366 at 678 (West 1969 & Supp. 1989). Because the
Court has relied on matters outside the pleadings, it will
address the instant motion filed by Defendant as a motion for
Summary judgment is appropriate where there is no genuine issue
as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56; Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). To avoid summary judgment,
the non-moving party must "go beyond the pleadings and by [his]
own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' [and] designate
`specific facts showing that there is a genuine issue for
trial.'" Celotex Corp., 477 U.S. at 324. A genuine issue of material
fact is one that will permit a reasonable jury to return a
verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In evaluating the evidence, the
Court must "view the inferences to be drawn from the underlying
facts in the light most favorable to the [nonmoving] party."
Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (quoting
Bartnicki v. Vopper, 200 F.3d 109, 114 (3d Cir. 1999)).
Conclusory allegations do not meet the non-moving party's duty to
set forth specific facts showing that a genuine issue of material
fact exists and a reasonable fact finder could rule in its favor.
Ridgewood Bd. of Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir.
1999). In this Circuit, however, it has been held that the
pleadings of pro se plaintiffs are to be construed liberally.
Alston v. Parker, 363 F.3d 229, 234 (3d Cir. 2004) (citing
Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003)).
B. New Jersey's entire controversy doctrine and the principle
of res judicata bar Plaintiff's claims
New Jersey's entire controversy doctrine, codified in Rule
4:30A of the New Jersey Rules of Civil Procedure, provides that
"[n]on-joinder of claims required to be joined by the entire
controversy doctrine shall result in the preclusion of omitted
claims to the extent required by the entire controversy
doctrine. . . ." N.J.R. 4:30A. It is the "commonality of facts,"
rather than legal issues, parties or remedies, "that defines the
scope of the controversy and implicates the joinder requirements
of the entire controversy doctrine." DiTrolio v. Antiles,
142 N.J. 253, 272 (1995). Thus, "the central consideration is whether
the claims . . . arise from related facts or the same transaction
or series of transactions." Fields v. Thompson Printing Co.,
Inc., 363 F.3d 259, 265 (3d Cir. 2004) (quoting DiTrolio,
142 N.J. at 267). The entire controversy doctrine applies to
"virtually all causes, claims, and defenses relating to a
controversy between the parties engaged in litigation." Id. at
265 (citation omitted). Federal courts in New Jersey have applied New Jersey's
entire controversy doctrine to bar claims that were actually
litigated or could have been litigated in previous state court
actions. See Bernardsville Quarry v. Borough of
Bernardsville, 929 F.2d 927, 930 (3d Cir. 1991); Heir v. Del.
River Port Auth., 218 F.Supp.2d 627, 632 (D.N.J. 2002); Dowdell
v. Univ. of Medicine and Dentistry of New Jersey,
94 F.Supp.2d 527, 534 (D.N.J. 2000).
Morever, under the Full Faith and Credit Clause of the
United States Constitution, "the judicial proceedings of a state court
shall have the same full faith and credit within every court in
the United States as they have by law or usage in the courts of
the issuing state." Paramount Aviation Corp. v. Agusta,
178 F.3d 132, 141 (3d Cir. 1999). Thus, a federal court in New Jersey
must apply New Jersey's preclusion law, including its entire
controversy doctrine, when determining the preclusive effect of a
previous judgment issued by a New Jersey state court. See
Total Packaging Corp. v. Tenneco Packaging Corp., No. 01-4286,
2004 WL 758240, at *4 (D.N.J. Apr. 2, 2004); Sutton v. Sutton,
71 F.Supp.2d 383, 390 (D.N.J. 1999). In addition to the entire
controversy doctrine, courts may also apply New Jersey's general
principles of res judicata when determining the preclusive
effect of a New Jersey judgment. See Sutton,
71 F.Supp.2d at 390-91.
The principle of res judicata bars the re-litigation of
claims that were decided in a previous case involving the same
parties and arising out of the same transaction. Res judicata
"avoids `the expense and vexation attending multiple lawsuits,
conserves judicial resources, and fosters reliance on judicial
action by minimizing the possibility of inconsistent decisions.'"
E.E.O.C. v. U.S. Steel Corp., 921 F.2d 489, 492 (3d Cir. 1990)
(quoting Montana v. United States, 440 U.S. 147, 153-154
(1979)). In order for a subsequent action to be barred by res
judicata under New Jersey law, 1) the judgment in the prior
action must be valid, final, and on the merits, 2) the parties in
the later action must be identical to or in privity with those in the prior
action, and 3) the claim in the later action must grow out of the
same transaction or occurrence as the claim in the earlier one.
See Sutton, 71 F.Supp.2d at 390 (citing Watkins v. Resorts
Int'l Hotel and Casino, Inc., 124 N.J. 398, 412 (1991)).
Similarly, under federal law, a subsequent action will be barred
by res judicata if there is "(1) a final judgment on the
merits in a prior suit involving (2) the same claim and (3) the
same parties or their privies." Id. at 389 (quoting U.S. Steel
Corp., 921 F.2d at 493).
Here, the Court finds that Plaintiff's Complaint, even in its
amended form, is barred by New Jersey's entire controversy
doctrine. All of the claims raised in the present action,
necessarily arise from the same facts and transactions as the
claims raised in the state court action. As in his state court
complaint, Plaintiff here alleges that he was denied the right to
complete his undergraduate degree and suffered financial losses
due to his dismissal from the University. The allegations in
Plaintiff's Complaint and Amended Complaint in this matter mirror
those claims asserted in the state court proceeding. For example,
in both actions, Plaintiff claims that he was involved in serious
motor vehicle accidents and thus unable to complete his courses.
Plaintiff further alleges that he followed Defendant's policies
for withdrawing from his courses by submitting doctors' notes,
but was unfairly denied his right to withdraw. In addition,
Plaintiff alleges in both actions that Plaintiff had an express
contract with Defendant, which Defendant breached, along with the
contract's implied covenant of good faith and fair dealing, by
arbitrarily dismissing Plaintiff from the University.*fn7
In addition to the identical claims asserted in the state and
federal actions, Plaintiff presents no facts before this Court
that were not already addressed in the state court proceeding.
The only difference between Plaintiff's claims in this Court and those in
state court is the addition of Plaintiff's equal protection and §
1981 claims.*fn8 However, these additional civil rights
violations are not supported by the evidence in the record or by
any facts in Plaintiff's Complaint or Amended Complaint in this
action. Moreover, these allegations arise out of the same facts
and transactions as Plaintiff's claims in the state court action
and should therefore have been joined in the state court
complaint. In sum, all of Plaintiff's claims in the present
matter were either already adjudicated in state court and
dismissed with prejudice, or should have been included in his
state court action.*fn9
Res judicata also precludes this Court from further review
of Plaintiff's allegations in the instant action. First, the
judgment in state court was valid, final and on the merits. New
Jersey law dictates that a dismissal with prejudice "constitutes
an adjudication on the merits as fully and completely as if the
order had been entered after a trial." Dowdell,
94 F.Supp.2d at 533. Second, the present action involves the same parties that
were involved in the original state court action. Finally, the
claims in this action not only arise out of the same occurrences
as the claims asserted in the state court action, but are also
virtually identical to the claims set forth in Plaintiff's state
court complaints. While Plaintiff did not plead his state court
claim with clarity, the state court categorized his claim as one
asserting a violation of § 1983. Therefore, his § 1983 claim was
dismissed with prejudice and cannot be re-litigated in this
Court. See Sponzilli Cert. Ex. G, Ex. I. The civil rights
claims in the instant action which were not raised in the state
court action are barred by the entire controversy doctrine. C. Plaintiff does not state a cause of action under § 1981
Section 1981 prohibits racial discrimination in the making and
enforcement of contracts and property transactions. See Brown
v. Phillip Morris Inc., 250 F.3d 789, 796 (3d Cir. 2001). In
order to state a claim under § 1981 "a plaintiff must allege
facts in support of the following elements: (1) that plaintiff is
a member of a racial minority; (2) intent to discriminate on the
basis of race by defendant; and (3) discrimination concerning one
or more of the activities enumerated in the statute." Perry v.
Gold & Laine, P.C., 371 F.Supp.2d 622, 628 (D.N.J. 2005)
(quoting Brown v. Philip Morris, Inc., 250 F.3d 789, 797 (3d
Cir. 2001) (internal quotations omitted)). A showing of disparate
impact is insufficient because § 1981 only provides a cause of
action for intentional discrimination. Pryor v. Nat'l Collegiate
Athletic Ass'n, 288 F.3d 548, 562 (3d Cir. 2002) (citing Gen.
Bldg. Contractors Ass'n, Inc. v. Pennsylvania, 458 U.S. 375,
Here, even after liberally construing Plaintiff's pro se
pleadings and reviewing the evidence in the record, the Court
finds that Plaintiff does not state a cause of action under §
1981. The record does not reflect that Plaintiff's race was the
reason for his dismissal from Rutgers. Plaintiff merely adds §
1981 to his preexisting § 1983 claim and does not support his §
1981 claim with any evidence demonstrating that Defendant's staff
members intended to discriminate against him because of his race.
Furthermore, there is nothing in the record that suggests
Defendant engaged in or intended to engage in any racially
motivated discrimination against Plaintiff. Rather, it appears
that the addition of the § 1981 claim was a last minute effort by
Plaintiff to inject a federal claim into his action and thereby
gain access to federal court. Such a bald allegation of a
violation of federal law cannot constitute an actionable claim in
this Court. D. Plaintiff's 42 U.S.C. § 1985 and § 1986 claims*fn10
Plaintiff's second response to Defendant's motion alleges
violations under 42 U.S.C. § 1985 ("§ 1985") and 42 U.S.C. § 1986
("§ 1986"); however, there is no evidence in the record that
supports such violations under the statute. Although Plaintiff
does not specify which subsection of § 1985 Defendant has
violated, the Court finds that the third clause of § 1985 is the
only subsection applicable to Plaintiff's case.*fn11 §
1985(3) protects persons from deprivations of rights committed by
either private or state actors as part of a conspiracy. See
Brown, 250 F.3d at 805. § 1985(3) does not create any
substantive rights, but rather serves as a vehicle for
vindicating federal rights and privileges that have been defined
elsewhere. Id. (citing Great Am. Fed. Sav. & Loan Ass'n v.
Novotny, 442 U.S. 366, 376 (1979)). To succeed in an action
under § 1985(3), a plaintiff must show "(1) a conspiracy; (2)
motivated by a racial or class-based discriminatory animus,
designed to deprive, directly or indirectly, any person or class
of persons of equal protection of the laws; (3) an act in
furtherance of the conspiracy; and (4) an injury to person or
property or the deprivation of any right or privilege of a
citizen of the United States." White v. Williams,
179 F.Supp.2d 405, 421 (D.N.J. 2002) (citing Lake v. Arnold, 112 F.3d 682,
685 (3d Cir. 1997)). The Supreme Court has recognized only two
rights protected by § 1985(3): the right to be free from
involuntary servitude and the right to travel interstate.*fn12 See Brown, 250 F.3d at 805
(citing Bray v. Alexandria Women's Health Clinic, 506 U.S. 263,
A plaintiff has a valid cause of action under § 1986 against a
person who had knowledge of a conspiracy addressed in § 1985,
"and having power to prevent or aid in preventing the commission
of the same, neglects or refuses so to do. . . ."
42 U.S.C. § 1986. A § 1986 claim depends on proof of a § 1985 claim. See
e.g. Rogin v. Bensalem Township, 616 F.2d 680, 691 (3d Cir.
Here, while Plaintiff alleges that Defendant's staff, led by
Associate Dean Rabinowitz, conspired to deprive him of his
constitutional rights, the Court finds that these claims are
deficient as a matter of law because the record shows no evidence
of racial hostility. Although entitled to the benefit of all
justifiable inferences from the evidence, a nonmoving party
cannot withstand summary judgment by resting on mere allegations
or denials in the pleadings. Rather, such party must rely on
affidavits or other evidentiary matter that shows there is a
genuine issue for trial. See Matsushita Electric Industrial
Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). Given
that there are no facts in the record demonstrating Defendant's
violations of these federal statutes and Plaintiff's failure to
come forward with any evidence to support his § 1985 and § 1986
claims, summary judgment on such claims is appropriate.
E. The Court declines to exercise supplemental jurisdiction
over Plaintiff's state law claims
A federal court has jurisdiction over a matter pursuant to
diversity or federal question jurisdiction. See
28 U.S.C. §§ 1331, 1332. Under 28 U.S.C. § 1367, once a court has original
jurisdiction over some claims in an action, it may exercise
supplemental jurisdiction over additional claims that are part of
the same case or controversy. 28 U.S.C. § 1367. However, the
exercise of supplemental jurisdiction is a matter of discretion.
See United Mine Workers of America v. Gibbs, 383 U.S. 715,
726 (1966) (stating that "pendent jurisdiction is a doctrine of
discretion, not of plaintiff's right."). Pursuant to 28 U.S.C. § 1367(c)(3), "[t]he
district courts may decline to exercise supplemental jurisdiction
. . . if . . . the . . . court has dismissed all claims over
which it has original jurisdiction."
Here, the Court does not have diversity jurisdiction because
there is no diversity of citizenship between the parties. In
addition, the Court is precluded from hearing Plaintiff's § 1983
claim because such claim was already adjudicated in state court.
Moreover, there is no federal question jurisdiction under
28 U.S.C. § 1331 because Plaintiff has failed to state a cause of
action under § 1981, § 1985 and § 1986. Since there are no
federal claims remaining in this matter, this Court declines to
exercise supplemental jurisdiction over Plaintiff's breach of
contract and breach of covenant of good faith and fair dealing
For the foregoing reasons, Defendant's motion to dismiss, or in
the alternative, motion for summary judgment on Plaintiff's
Complaint and Amended Complaint is granted. The Court will issue
an appropriate Order.