United States District Court, N.D. Illinois, Eastern Division
A.M. Sifuna, Plaintiff,
Accreditation Council of Pharmacy Education, et al., Defendants.
MEMORANDUM OPINION AND ORDER
S. SHAH, UNITED STATES DISTRICT JUDGE.
failing a course and being dismissed from the South College
School of Pharmacy, plaintiff A.M. Sifuna filed this action
against the Accreditation Council of Pharmacy Education;
ACPE's Director of Accreditation, Gregory Boyer; a
student at South College School of Pharmacy, Michael Dotson;
and several employees of South College School of Pharmacy,
Walter Fitzgerald, Gamal Hussein, Kerri Freeman, Michael
O'Neil, Kellie Goza, and Karen Owens. Both the ACPE
defendants and the South College defendants filed motions to
dismiss. For the following reasons, both motions are granted.
motion to dismiss under Rule 12(b)(1) challenges the
Court's subject-matter jurisdiction. Fed.R.Civ.P.
12(b)(1). The party asserting jurisdiction bears the burden
of establishing that jurisdiction is satisfied. Glaser v.
Wound Care Consultants, Inc., 570 F.3d 907, 913 (7th
Cir. 2009). If a defendant makes a facial challenge to the
sufficiency of the allegations regarding subject-matter
jurisdiction, the court accepts all well-pleaded factual
allegations as true and it draws all reasonable inferences in
favor of the plaintiff. Apex Digital, Inc. v. Sears,
Roebuck & Co., 572 F.3d 440, 443-44 (7th Cir. 2009).
If, however, the defendant makes a factual challenge, by
denying or controverting the truth of the jurisdictional
allegations, the court may look beyond the pleadings and view
any evidence submitted by the parties to determine if the
plaintiff has established jurisdiction by a preponderance of
the evidence. Id.
motion to dismiss under Rule 12(b)(2) tests whether a federal
court has personal jurisdiction over a defendant.
Fed.R.Civ.P. 12(b)(2). The party asserting jurisdiction has
the burden of proof. Tamburo v. Dworkin, 601 F.3d
693, 700 (7th Cir. 2010). Where, as here, a court determines
a Rule 12(b)(2) motion based on the submission of written
materials and without holding an evidentiary hearing, the
plaintiff need only make out a prima facie case of personal
jurisdiction. uBID, Inc. v. GoDaddy Grp., Inc., 623
F.3d 421, 423 (7th Cir. 2010); GCIU-Employer Ret. Fund v.
Goldfarb Corp., 565 F.3d 1018, 1023 (7th Cir. 2009).
Even though courts resolve all factual disputes in the
plaintiff's favor, courts accept as true all unrefuted
facts in the defendants' declarations or affidavits.
GCIU-Employer Ret. Fund, 565 F.3d at 1020 n.1.
Accordingly, when defendants challenge a fact alleged in the
plaintiff's complaint with a sworn statement, the
plaintiff has an obligation to go beyond the pleadings and
submit affirmative evidence supporting the exercise of
jurisdiction. Purdue Research Found. v. Sanofi-Sythelabo,
S.A., 338 F.3d 773, 783 (7th Cir. 2003).
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of the complaint, not the merits of the case. Fed.R.Civ.P.
12(b)(6). The court accepts all factual allegations as true
and it draws all reasonable inferences in the plaintiff's
favor, but it need not accept legal conclusions or conclusory
allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79
(2009). The complaint must not only provide the defendant
with fair notice of a claim's basis but also, it must be
facially plausible. Id. at 678; see also Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“A pleading that offers ‘labels and
conclusions' or ‘a formulaic recitation of the
elements of a cause of action will not do.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 555).
hold pro se complaints, like this one, to a less
stringent standard than formal pleadings drafted by lawyers.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007);
see also Anderson v. Hardman, 241 F.3d 544, 545 (7th
Cir. 2001). Under this standard, a pro se complaint
“may only be dismissed if it is beyond doubt that there
is no set of facts under which the plaintiff could obtain
relief.” Wilson v. Civil Town of Clayton,
Ind., 839 F.2d 375, 378 (7th Cir. 1988). However, the
court “is not to become an advocate” for the
pro se plaintiff, Donald v. Cook Cty.
Sheriff's Dep't, 95 F.3d 548, 555 (7th Cir.
1996); and the complaint still must be “otherwise
understandable.” Hudson v. McHugh, 148 F.3d
859, 864 (7th Cir. 1998).
2011, Sifuna moved to Knoxville, Tennessee, to attend South
College School of Pharmacy.  ¶¶
13-14. During her time at South College, Sifuna
encountered a number of obstacles. Her complaint describes
her experiences there, including: the impeachment of the
class president, how she narrowly escaped punishment for
failing to adhere to the lab coat and scrubs policy,
complaints from students and faculty about her behavior,
delayed disbursement of her stipend, her missed homework
assignment due to severe weather, threats from O'Neil to
not submit negative reviews, and being held captive by an
instructor who used half of the class time to play rap music.
See, e.g., id. ¶¶ 19-41.
are also several references in the complaint to Sifuna's
race or national origin. See, e.g.,
id. ¶ 22 (while looking at Sifuna, Fitzgerald
said: “We should be very grateful for the technology
that South College is offering because students in Africa
were performing Laboratory work in huts.”);
id. ¶ 23 (Sifuna “was forced to give an
interview about her nation of origin to the College's
marketing firm and was told it was part of being a team
player.”); id. ¶ 32 (Fitzgerald told
Sifuna that “coming from where you come from, you
should be grateful that we have given you an
opportunity.”); id. ¶ 42 (Sifuna was
forced out of a study room “so that a white student who
had arrived late to study for her finals too could use
it.”); id. ¶ 75 (“Plaintiff was
treated in a disparate fashion based on her race, nation of
origin and gender”); id. ¶ 106 (there
were only four black students, and Sifuna was the only
student originally from Africa; Freeman wanted to punish a
minority student by awarding a punitive grade).
crux of the complaint, it seems, concerns Sifuna's
Introductory Pharmacy Practice Experiences rotation.
Id. ¶ 45. Sifuna says she got lost on the way
to her fourth IPPE rotation, which ultimately led to her
failing the course. Id. ¶¶ 45-46. At a
meeting, Fitzgerald, Freeman, and Hussein informed Sifuna
that she was academically dismissed from South College, but
that she should appeal her failing grade in the IPPE
course. Id. ¶¶ 52, 92. Sifuna
appealed the grade, but she received a denial. Id.
¶ 53. Sifuna was advised to file an appeal to be
readmitted to the school, but “[a]n opportunity to file
a real appeal was denied, ” as was access to an
attorney, the ability to record the proceedings, or to bring
witnesses. Id. ¶¶ 53- 55. She
tried to pursue other avenues to resolve the situation, but
she was unsuccessful. Id. ¶ 56.
Sifuna wrote to ACPE to complain about South College's
decision to refuse to allow her to retake the IPPE course, as
they had promised at the beginning of the quarter and as the
school's handbook required. Id. ¶ 61. ACPE
responded to Sifuna and explained that it would explore her
complaint but that “ACPE has no authority to overturn
any school action, only to ensure that the school's
policies and procedures were appropriately followed.”
Id. at 74. Additionally, ACPE advised Sifuna that
even if it found that South College failed to follow its
policies or procedures, that all ACPE could do is require the
school to reevaluate the matter, and that the outcome could
stay the same because “[a]cademic performance decisions
rest with the program, not with ACPE.” Id.
Sifuna asked ACPE if she could provide evidence to support
her complaint several times, but ACPE did not acknowledge her
request. Id. ¶ 63. Two years later, ACPE
provided Sifuna with a link through which to submit evidence;
after Sifuna attempted to use this link to submit evidence,
ACPE responded that her case was old and would not be
reopened. Id. ¶ 67. Even when Sifuna found
“more evidence” to support her case against South
College, ACPE would not accept it because the new evidence
did not add anything new to Sifuna's case. Id.
¶ 68. Sifuna complained to the Department of Education
about ACPE's failure to properly investigate her
complaint. Id. ¶ 64.
seven-count complaint in this action is difficult to
decipher, but this much is clear: Count I is against
Fitzgerald, ACPE, and Boyer for “intentional negligence
and violation of federal law.” Id. at 18.
Sifuna's theory is that by failing to properly
investigate her complaint, ACPE failed in its obligation to
ensure that the programs it accredits comply with their
policies and procedures. Count II is against Fitzgerald and
ACPE for “misrepresentation.” Id. at 34.
Sifuna's theory is that Fitzgerald touted the
qualifications of a school accredited by ACPE, but those
features were not available when Sifuna began school there;
Hussein misrepresented facts to the hearing committee about
Freeman offering Sifuna an incomplete grade and an
opportunity to change that grade to a pass; and Goza misled
Sifuna and her preceptors about when to attend the IPPE
course. Count III is against Fitzgerald, Hussein, Freeman,
and ACPE for “retaliation.” Id. at 45.
Sifuna's theory was that Fitzgerald retaliated against
her for refusing to speak with ACPE on behalf of South
College's pre-candidacy application; Hussein retaliated
against her because she discovered that he violated the
accreditation requirements; Freeman retaliated against her
because she felt wronged by Sifuna; and ACPE retaliated
against her for filing complaints against it. Count IV is
against Fitzgerald, Hussein, Freeman, and ACPE for
“violation of due process.” Id. at 48.
Sifuna's theory is that Fitzgerald, Hussein, and Freeman
illegally awarded her a failing grade and ignored proper
procedures, and that ACPE failed to follow its policies and
procedures. Count V is against Fitzgerald, Goza, Hussein,
Freeman, O'Neil, ACPE, and Boyer for
“discrimination.” Sifuna's theory is that
Fitzgerald and another professor bullied her persistently to
create a discriminatory environment, and that ACPE required
her to reveal her name in her complaint even though ACPE
never required white complainants to reveal their names.
Count VI is against Fitzgerald, Goza, Hussein, Freeman,
Dotson, and ACPE for “defamation.” Id. at
51. Sifuna's theory is that defendants defamed her by
portraying her as a violent person who is not fit for the
pharmacy profession, and that Fitzgerald, Hussein, and
Freeman falsely claimed that she did not show up for an
appeal hearing, which led to the confirmation of her academic
dismissal. Count VII is against all defendants for
“intentional infliction of distress.”
Id. at 54. Sifuna's theory is that defendants
caused her immense suffering and mental anguish, which led to
bouts of unemployment and homelessness, and it caused her to
have panic attacks and to contemplate suicide, among other
ACPE defendants move to dismiss the complaint for lack of
subject-matter jurisdiction and for failure to state a claim
upon which relief may be granted. Fed.R.Civ.P. 12(b)(1), (6).
The South College defendants move to dismiss the complaint
for lack of subject-matter jurisdiction and for lack of
personal jurisdiction. Fed.R.Civ.P. 12(b)(1)-(2).