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Sifuna v. Accreditation Council of Pharmacy Education

United States District Court, N.D. Illinois, Eastern Division

November 28, 2017

A.M. Sifuna, Plaintiff,
Accreditation Council of Pharmacy Education, et al., Defendants.



         After 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.

         I. Legal Standards

         A 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.

         A 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).

         A 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).

         Courts 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).

         II. Facts

         In June 2011, Sifuna moved to Knoxville, Tennessee, to attend South College School of Pharmacy. [1] ¶¶ 13-14.[1] 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.

         There 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).

         The 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.[2] 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.[3] Id. ¶¶ 53- 55. She tried to pursue other avenues to resolve the situation, but she was unsuccessful. Id. ¶ 56.

         Eventually, 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.

         Sifuna's 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.”[4] 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 things.

         III. Analysis

         The 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).

         A. ...

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