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Kirby v. North Carolina State University

United States District Court, E.D. North Carolina, Western Division

March 10, 2015

KENDA R. KIRBY, Plaintiff,


LOUISE W. FLANAGAN, District Judge.

This matter is before the court on defendant North Carolina State University's ("NCSU") motion to dismiss, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6) (DE 15). Pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), United States Magistrate Judge James E. Gates entered a memorandum and recommendation ("M&R") wherein it is recommended that defendant's motion be granted. Plaintiff has filed objections to the M&R, and the deadline for defendant's response has passed. In this posture, the issues raised are ripe for ruling. For the reasons stated below, the court adopts the recommendation in the M&R and grants NCSU's motion to dismiss.


Plaintiff commenced this action on December 13, 2013, by filing a motion for leave to proceed in forma pauperis, attaching a copy of her proposed complaint. The motion was denied by order dated December 16, 2013, and plaintiff paid her filing fee and filed her complaint January 13, 2014. NCSU filed its motion to dismiss on April 8, 2014, arguing that the court lacked jurisdiction over it because it was an instrumentality of North Carolina protected by the Eleventh Amendment of the United States Constitution, and that the action was barred by the statute of limitations.

The M&R issued January 23, 2015. The M&R construed plaintiff's complaint as raising claims for violation of the First Amendment and equal protection and due process clauses of the Fourteenth Amendment of the United States Constitution, pursuant to 42 U.S.C. § 1983; conspiracy to violate civil rights pursuant to 42 U.S.C. § 1985; breach of contract; defamation; and intentional infliction of emotional distress. The M&R recommends dismissal of plaintiff's claims because defendant is entitled to sovereign immunity under the Eleventh Amendment of the United States Constitution.

Where there is no objection to the M&R's summary of the allegations in plaintiff's complaint, the court hereby incorporates that portion of the M&R by reference. As pertinent here, plaintiff was admitted to a Ph.D. program at the College of Veterinary Medicine at NCSU in 1992. (Compl. ¶ 8). In April 1993, she attended an event for lesbians and gays in Washington, D.C. ( Id., ¶ 9). She took her final exams the following week, earning enough points to maintain a passing grade and good standing. (Id.). However, plaintiff later received grade reports showing failing grades. ( Id., ¶ 10). One of plaintiff's professors, Dr. Ida Washington Smoak, informed plaintiff that Smoak and another professor, Dr. James E. Smallwood, had intentionally changed plaintiff's grades. ( Id., ¶ 11). Smoak told plaintiff the professors were angry because plaintiff "attended a gay rights rally at an inconvenient time" and because plaintiff "was an avid Clinton supporter." (Id.). Plaintiff alleges that, "in some conservative circles in North Carolina during this time frame, being an avid Clinton support' [sic] was considered code for being gay." ( Id., ¶ 11 n. 2).

Plaintiff filed a grievance, pursuant to NCSU internal procedures, and continued to attend a class in the spring 1994 semester, pending resolution of the grievance. ( Id., ¶¶ 12, 16). However, she received a letter from an unspecified source who threatened her with arrest if she continued attending the class. ( Id., ¶ 16). She was then prevented from dropping the class, and a grade of "I" (incomplete) filed by course professors was changed to "F" (failing). ( Id., ¶ 17).

In summer of 2013, plaintiff interviewed for a faculty position at her undergraduate alma mater. ( Id., ¶ 3). The interviewing department chair requested a copy of plaintiff's NCSU transcript, but NCSU refused the request because it claimed plaintiff owed $321 for the spring 1994 class. ( Id., ¶ 3 and Ex. B 3-6). Although plaintiff was considered well-qualified for the position with her alma mater, plaintiff ultimately was denied employment due to delay in the transcript's delivery, and also because of credibility issues raised by the failing grades on her transcripts. ( Id., ¶ 4).


A. Standard of Review

a. Review of M&R

The district court reviews de novo those portions of a magistrate judge's M&R to which specific objections are filed. 28 U.S.C. § 636(b). The court does not perform a de novo review where a party makes only "general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations." Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). Absent a specific and timely filed objection, the court reviews only for "clear error, " and need not give any explanation for adopting the M&R. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir.1983). Upon careful review of the record, "the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

1. Rule 12(b)(1)

A Rule 12(b)(1) motion challenges the court's subject matter jurisdiction, and the plaintiff bears the burden of showing that federal jurisdiction is appropriate when challenged by the defendant. McNutt v. Gen. Motors Acceptance Corp., 298 U.S. 178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). Where, as here, the moving party contends that the complaint "simply fails to allege facts upon which subject matter jurisdiction can be based, " then "all facts alleged in the complaint are assumed true." Adams, 697 F.2d at 1219. "Where the jurisdictional facts are intertwined with the facts central to the merits of the dispute... the entire ...

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