United States District Court, D. South Dakota, Southern Division
ORDER GRANTING MOTION TO DISMISS
E. SCHREIER, UNITED STATES DISTRICT JUDGE.
Jusu Dukuly, brought suit against defendant alleging
violations of school academic policy, intimidations and
harassment, discriminations, projected criticisms, academic
distress, emotional distress, psychological distress, pain
and suffering, failure to post grades, defamation of
character, and a Family Educational Rights and Privacy Act
(FERPA) violation. Docket 1 ¶ V. Defendant
Augustana moves to dismiss Dukuly's complaint
under 12(b)(6) of the Federal Rules of Civil Procedure.
Dukuly opposes the motion. For the following reasons,
defendant's motion to dismiss is granted. Docket 20.
filed a pro se complaint on April 16, 2018, naming
defendant, Augustana, and alleging a FERPA violation among
other claims. Docket 1 ¶ V. On April 17, 2018, this
court granted Dukuly's motion for leave to proceed in
forma pauperis. Docket 9.
was enrolled in English 200C, taught by Dr. Rives-East at
Augustana. The alleged FERPA violation occurred when Dr.
Rives-East provided a detailed video presentation to
Augustana administrators and faculty members documenting and
answering each of Dukuly's allegations. Docket 1. Dukuly
alleges that Dr. Rives-East violated his rights under FERPA
by sharing the video to third parties. Id. ¶
IV. Additionally, Dukuly is suing Dr. Rives-East for numerous
other state-law claims.
has a written FERPA policy concerning challenges to the
contents of education records.
Any student who believes their education record contains
information that is inaccurate or misleading or otherwise in
violation of their privacy is encouraged to informally
discuss this concern with a university administrator
responsible for the department or area in which the record is
located. If the administration decides to not amend the
record as requested, the student may contact the Dean of
Students Office relative to an appeal hearing. Students have
a right to file a complaint with the U.S. Department of
Education concerning alleged failures by the University to
comply with requirements of FERPA. The name and address of
the office that administers FERPA is: Family Policy
Compliance Office, U.S. Department of Education, 400 Maryland
Avenue, SW., Washington, DC, 20202-4605.
Docket 1-5 at 4. Every Augustana student has access to this
policy and is able to follow this policy in addressing any
FERPA grievance with either school administration or the
Department of Education.
series of emails were exchanged between Dukuly and Dr.
Rives-East concerning the allegations Dukuly brings before
the court. Docket 1-3. The emails concerned Dukuly's
issue with his midterm grade of a "D" received in
Dr. Rives-East's course. Id. at 6. In response
to the email correspondence with Dukluly, Dr. Rives-East
documented by video her grading rubric, essay feedback
(including grading, editing, and recommendations on
Dukuly's personal essay submission), and numerous email
conversations offering both personal assistance and contact
with tutors. Dr. Rives-East's video was initially sent to
Dukuly and three relevant faculty and administrative
personnel including: Dr. Loren Koepsell (Dukuly's
academic advisor), Dr. Janet Blank-Libra (English department
chair), and Dr. Mitch Kinsinger (Associate Vice President of
Academic Affairs). In response, Dukuly emailed Dr. Rives-East
stating that he would bring this situation before the
Augustana board and the president of the university,
Stephanie Herseth Sandlin. Id. at 7. Then, Dr.
Rives-East replied via email requesting that Dukuly be
removed from her English 200C course, with a copy to Dr.
Jerry Jorgensen (Senior Vice President of Academic Affairs)
and Dr. Jeffery Miller (Humanities Division Chair).
filed a complaint in federal court against Dr. Rives-East.
Docket 1. In response to the complaint, Augustana filed a
motion to dismiss for failure to state a claim. Docket 19.
Dukuly opposes the motion to dismiss.
may dismiss a complaint "for failure to state a claim
upon which relief can be granted." Fed.R.Civ.P.
12(b)(6). When reviewing a motion to dismiss under Rule
12(b)(6), the court assumes that all facts in the complaint
are true and construes any reasonable inferences from those
facts in the light most favorable to the nonmoving party.
Schaaf v. Residential Funding Corp., 517 F.3d 544,
549 (8th Cir. 2008). The factual content in the complaint
must" 'allow the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.'" Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 594 (8th Cir. 2009) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)). As a pro se
plaintiff, the court lowers the pleading standards liberally
in favor of the complaint; however, the court" 'will
not supply additional facts, nor will [it] construct a legal
theory for plaintiff that assumes facts that have not been
pleaded.'" Stone v. Harry, 364 F.3d 912,
914 (8th Cir. 2004) (quoting Dunn v. White, 880 F.2d
1188, 1197 (10th Cir. 1989)).
complaint does not contain these bare essentials, dismissal
is appropriate. See Beavers v. Lockhart, 755 F.2d
657, 663 (8th Cir. 1985). "To survive a motion to
dismiss, a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Iqbal, 556 U.S. at
678 (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). "A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id. (quoting
Bell Atl. Corp., 550 U.S. at 556). Federal pleading
rules call for "a short and plain statement of the ...