UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) CLARENCE JACKSON, ) ) Plaintiff, ) ) v. ) Case No. 1:16-cv-02049 (APM) ) OFFICE OF THE MAYOR OF THE ) DISTRICT OF COLUMBIA, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION

I.

Pro se Plaintiff Clarence Jackson alleges that Defendants Office of the Mayor of the

District of Columbia and the District of Columbia Court of Appeals Committee on Admissions

(“COA”) improperly denied him the opportunity to take the District of Columbia bar exam for a

fifth time. See Compl., ECF No. 1, at 2–3. Construed liberally, Plaintiff’s Complaint asserts the

following claims: (1) violation of the Sixth, Thirteenth, and Fourteenth Amendments of the

United States Constitution; (2) discrimination under the Americans with Disabilities Act (“ADA”);

(3) breach of contract; and (4) intentional and negligent infliction of emotional distress.

See generally id.

The court now considers, on remand, Defendants’ Renewed and Narrowed Motion to

Dismiss Plaintiff’s Complaint. For the reasons that follow, Plaintiff’s claims and this matter are

dismissed in their entirety. II.

A.

The facts alleged are as follows. On November 19, 2010, Plaintiff applied to sit for the

District of Columbia bar for a fifth time. See Notice of Filing, ECF No. 11 [hereinafter Notice of

Filing II], at 36. 1 Plaintiff, however, failed to pay the required fees and to provide proof of law

school graduation. So, on November 24, 2010, the COA denied Plaintiff’s application for those

reasons. Id. at 37 (notice to Plaintiff from the COA).

Five years later, on December 31, 2015, Plaintiff filed suit against the COA in

D.C. Superior Court. Plaintiff claimed that the denial of his application constituted a breach of

contract, intentionally inflicted emotional distress, and violated his rights under the Fourteenth

Amendment. See Defs.’ Mot. to Dismiss, ECF No. 17 [hereinafter Defs.’ Mot.], at 2–3; see also

id., Ex. A, ECF No. 17-1 [hereinafter D.C. Super. Ct. Docket]. On April 1, 2016, the

D.C. Superior Court granted, without explanation, the COA’s motion to dismiss the complaint.

See Notice of Filing, ECF No. 10 [hereinafter Notice of Filing I], at 14.

On or about April 5, 2016, Plaintiff filed a petition with the D.C. Mayor’s Office,

apparently seeking to challenge the COA’s refusal to let him sit for the bar exam. See id. at 5.

The Mayor’s Office denied the petition because “[a] lawsuit has been filed for this claim.” Id.

Plaintiff appealed this decision to the D.C. Court of Appeals, but the court denied the appeal as

untimely. See id. at 24.

On April 7, 2016, Plaintiff asked the D.C. Superior Court to clarify why it dismissed his

complaint. That request went unanswered for more than a year. See id. at 13.

1 Plaintiff explains that the documents submitted with his Notice of Filing are “germane to the issues outlined in his Complaint.” Notice of Filing I at 2. The court therefore treats these documents as incorporated into the Complaint, and thus may consider them on Defendants’ motion to dismiss. See EEOC v. St. Francis Xavier Parochial School,

(D.C. Cir. 1997). 2 Plaintiff filed this action on October 11, 2016. See Compl. He sued both the COA and

the Mayor’s Office, challenging the COA’s denial of his application to sit for the bar exam and the

Mayor Office’s refusal to review that decision. See

at 1–3. The Complaint asserts multiple

claims, including violations of the Sixth, Thirteenth, and Fourteenth Amendments, as well as the

ADA. Plaintiff also advances causes of action for breach of contract, intentional infliction of

emotional distress, and negligent infliction of emotional distress. See

at 3–4.

B.

In March 2017, the court granted Defendants’ motion to dismiss, finding the action barred

by three doctrines: Rooker-Feldman, Younger abstention, and res judicata. See Jackson v. Office

of the Mayor of D.C., No. 1:16-CV-02049 (APM),

, at *2 (D.D.C. Mar. 8, 2017).

In December 2018, the Court of Appeals reversed, holding each doctrine inapplicable.

See Jackson v. Office of the Mayor of D.C.,

, 1170–71 (D.C. Cir. 2018).

It remanded the case for this court to consider the alternative bases for dismissal not previously

considered.

at 1171–72.

On remand, Defendants renewed their motion to dismiss, advancing the following grounds

for dismissal: (1) Plaintiff fails to state a claim; (2) the COA is immune from suit; (3) the claims

against the COA are time-barred; and (4) Plaintiff failed to give the District of Columbia notice of

his intentional and negligent infliction claims as required by D.C. Code § 12–309. See generally

Defs.’ Renewed and Narrowed Mot. to Dismiss, ECF No. 37 [hereinafter Defs.’ Renewed Mot.].

Plaintiff did not offer a new response to the Renewed Motion. Instead, he indicated only that he

was “oppose[d] to any and all filings by [D]efendant in this case since its pendency in this court”

and that his “pre-appeal response to [D]efendant’s motion to dismiss will be renewed again.”

3 Response to Order of the Court, ECF No. 41, ¶¶ 3–4. 2 The court therefore treats Plaintiff’s earlier-

filed response to Defendants’ original motion as his opposition to Defendants’ Renewed Motion.

See Pl.’s Resp. to Defs.’ Mot. to Dismiss, ECF No. 20.

III.

A.

The court finds that Plaintiff fails to state a claim as to each cause of action. To survive a

motion to dismiss for failure to state a claim, a complaint must contain sufficient factual matter,

accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.

Twombly,

(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.” Ashcroft v. Iqbal,

(2009). A pleading that offers

“labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not

do.” Twombly,

. Nor will a complaint survive if it tenders “naked assertion[s]”

devoid of “further factual enhancement.”

.

ADA Claim. Starting with Plaintiff’s ADA claim, Title II of the ADA prohibits

discrimination on the basis of a disability by any “public entity.” See

. To

state a claim under Title II, a plaintiff must allege that: (1) he is a “qualified individual with a

disability”; (2) who “was either excluded from participation in or denied the benefits of a public

entity’s services, programs, or activities, or was otherwise discriminated against by the public

entity”; and (3) that “such exclusion, denial of benefits, or discrimination was by reason of his

2 Plaintiff also filed what he labeled a “Motion for Judgment.” ECF No. 42. This filing, however, is “Part II,” see id. at 1, of an earlier filing made by Plaintiff, see Request for Payment on Judgment, ECF No. 36, seeking costs associated with successful appeal. The court will address this motion in a separate order. 4 disability.” Sacchetti v. Gallaudet Univ.,

(D.D.C. 2018) (internal

quotation marks omitted). Plaintiff fails to satisfy these pleading requirements.

In his Complaint, Plaintiff states that he “became totally disabled and partially paralyzed

in 2011” after taking the bar exam four times. Compl. at 3. He further contends that “for no

reason the [COA] refused to grant permission to take the exam the fifth time” and “[g]iven that

plaintiff new realized disability as of 2011, placed plaintiff not only to request to take the exam

again but also accommodation in the area of whatever is available for a generic black male with

partial paralysis on the left side of his frame.”

But critically, and fatal to his ADA claim, is

the absence of any allegation that he actually notified the COA of his disability or that the COA

had any reason to suspect a disability. As Defendants point out, Plaintiff marked “no” in response

to a question on the bar registration form asking, “Are you filing a request for testing

accommodations for taking the bar examination?” See Notice of Filing II at 36. In addition,

Plaintiff has not plausibly alleged exclusion from the bar exam based on disability. The COA

refused to allow him to sit for the bar because he did not pay the requisite fee and failed to produce

proof of law school graduation. See id. at 37. Plaintiff makes no factual allegation to overcome

this non-discriminatory reason for denying his application.

Finally, Plaintiff makes no allegation as to the Mayor’s Office that would support an ADA

claim against it. He therefore fails to state a claim under the ADA as to either defendant.

Sixth and Thirteenth Amendment Claims. Plaintiff fails to state a claim under the Sixth

and Thirteenth Amendments for a straightforward reason: neither Amendment confers a private

right of action. See Turner v. Rogers,

, 441 (2011) (noting that “the Sixth

Amendment does not govern civil cases”); Richardson v. Loyola College in Md., Inc., 167 Fed.

App’x. 223, 225 (D.C. Cir. 2005) (per curiam) (“[T]he Thirteenth Amendment does not provide

5 an independent cause of action for discrimination.”); Doe v. Siddig,

, 135–36

(D.D.C. 2011) (reviewing cases and noting that “[c]ourts in this Circuit have consistently held that

there is no private right of action under the Thirteenth Amendment”).

Fourteenth Amendment Claims. Under the banner of the “Fourteenth Amendment,” 3

Plaintiff asserts equal protection, substantive due process, and procedural due process violations.

With respect to the COA, Plaintiff asserts that his “exclusion . . . from the licensing process . . .

appears to be an act of a very racial discriminatory gender based practice and pattern.” Compl. at

3, ¶ 3. Plaintiff insists that “discovery . . . could easily expose the relentless attack against generic

black men that’s design[ed] to completely block them from receiving equal treatment on the level

of all other groups when attempting to qualify for [a]ttorney work in [W]ashington D.C.” Id. at

3, ¶ 4. As for the Mayor’s Office, Plaintiff alleges that “the refusal to grant plaintiff a hearing,”

the “refusal to sure-up whatever process in place that would guarantee the delivery of mail on

time,” the “refusal by the Mayor’s Office to provide the results of the requested discovery before

a decision was made,” and the “blatant compromise of impartiality by the appeal process” violated

his due process rights. Id. at 3, ¶ 5. None of these allegations is sufficient to make out a

constitutional claim.

Like any litigant, “a pro se complainant must plead ‘factual matter’ that permits the court

to infer ‘more than the mere possibility of misconduct.’” Atherton v. D.C. Office of Mayor,

, 681–82 (D.C. Cir. 2009) (quoting Iqbal,

). Plaintiff’s equal protection

claim lacks any factual support. He simply makes the conclusory assertion that the COA refused

to let him sit for the bar exam, ostensibly due to “what appears to be an act of a very racial

3 The Fourteenth Amendment does not apply to the District of Columbia, but the precepts of equal protection and due process are applicable to the District through the Fifth Amendment. See Bolling v. Sharpe,

, 498–99 (1954). 6 discriminatory gender based practice and pattern.” Compl. at 3, ¶ 3 (emphasis added). Such a

conclusory allegation falls far short of asserting a plausible claim. See Atherton, 567 F.3d at 687–

88 (finding pro se plaintiff’s equal protection claim based on “spare facts and allegations”

inadequately pleaded); Colbert v. Metro. Police Dep’t, Dist. 5, 404 Fed. App’x 509 (D.C. Cir.

2010) (per curiam) (“The district court properly dismissed appellant’s complaint for failure to state

a claim upon which relief could be granted because the complaint failed to allege sufficient facts

to support a claim of discrimination.”); Hodge v. U.S. Postal Serv., 161 Fed. App’x 19, 19–20

(D.C. Cir. 2005) (per curiam) (affirming dismissal of equal protection claim where the complaint

failed to “allege facts indicating . . . that the alleged actions were undertaken on a discriminatory

basis or were motivated by discriminatory intent or purpose”).

Plaintiff’s due process claims fare no better. To determine whether the government has

violated a procedural due process right, courts ask “whether the plaintiffs were deprived of a

protected interest, and, if so, whether they received the process they were due.” UDC Chairs

Chapter, Am. Ass’n of Univ. Professors v. Bd. of Trustees of Univ. of D.C.,

(D.C. Cir. 1995). Property interests are “created and their dimensions are defined by existing

rules or understandings that stem from an independent source such as state law—rules or

understandings that secure certain benefits and that support claims of entitlement to those

benefits.” Bd. of Regents v. Roth,

(1972). “To have a property interest in a

benefit, a person clearly must have more than an abstract need or desire for it. He must have more

than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”

Here, it is unclear what “protected interest” Plaintiff claims the Mayor’s Office denied him.

If it his “interest” in sitting for the bar, he has not alleged facts establishing his entitlement to that

benefit. The COA denied Plaintiff the opportunity to sit for the bar because he failed to pay the

7 required fees and because he failed to produce proof of law school graduation. Notice of Filing

II at 37. Plaintiff cannot claim a “protected interest” in sitting for the bar without having satisfied

these basic conditions.

What’s more, Plaintiff fails to plausibly allege any entitlement to the process he claims to

have been denied. Plaintiff complains that the Mayor’s Office refused to grant him a hearing,

failed to ensure on-time delivery of mail, and refused to provide discovery. Compl. at 3, ¶ 5. But

nothing in Plaintiff’s Complaint renders it plausible that the Mayor’s Office owed him any process

to complain about the COA’s decision after the D.C. Superior Court already rejected his claim.

In other words, Plaintiff offers nothing to support the proposition that he was entitled to

administrative review of the COA’s actions after his efforts at judicial review proved unsuccessful.

Plaintiff also fails to allege a substantive due process violation. “[T]he doctrine of

substantive due process constrains only egregious government misconduct.” George Washington

Univ. v. District of Columbia,

, 209 (D.C. Cir. 2003). Plaintiff’s Complaint contains

no facts that would support “egregious government misconduct.” Plaintiff’s substantive due

process claim therefore fails.

Breach of Contract. Plaintiff’s claim for breach of contract founders for the simple reason

that he alleges no facts that would support the existence of an enforceable agreement with either

the COA or the Mayor’s Office.

Intentional and Negligent Infliction of Emotional Distress. Plaintiff avers no facts to

establish either an intentional or negligent infliction of emotional distress claim. He does not

allege extreme and outrageous conduct to support the intentional tort. See Newmyer v. Sidwell

Friends Sch.,

(D.C. 2015). Nor does he allege facts that would support the

8 limited circumstances in which negligent infliction is a cognizable claim. See generally

Hedgepeth v. Whitman Walker Clinic,

, 799–800, 810–11 (D.C. 2011).

B.

In addition to failing to state a claim, Defendants’ causes of action against the COA are

time-barred. The court recognizes that dismissal on limitations grounds is disfavored on a motion

to dismiss. See Firestone v. Firestone,

(D.C. Cir. 1996). Dismissal is

appropriate “only if the complaint on its face is conclusively time-barred.”

A complaint is

“conclusively time-barred” if “a trial court determines that the allegation of other facts consistent

with the challenged pleading could not possibly cure the deficiency.”

(internal quotation

marks omitted); see also Momenian v. Davidson,

(D.C. Cir. 2017).

The limitations period for each of Plaintiff’s claims is three years. See Di Lella v. Univ.

of D.C. David A. Clarke Sch. of Law,

, 7–8 n.9 (D.D.C. 2008) (noting that “[i]n

the District of Columbia, the three-year personal injury statute of limitations applies to non-

employment claims of discrimination brought pursuant to the ADA”); Earle v. District of

Columbia,

, 304–05 (D.C. Cir. 2012) (recognizing three-year limitations period for

constitutional claims under section 1983); LoPiccolo v. Am. Univ.,

(D.D.C.

2012) (recognizing three-year statute of limitations for negligent infliction of emotional distress));

Rendall-Speranza v. Nassim,

(D.C. Cir. 1997) (“[T]he D.C. Court of Appeals

has held that an independent action for intentional infliction of emotional distress is subject to the

District’s three-year residual limitation period, D.C. Code § 12–301(8).”); Mizell v. SunTrust Bank,

(D.D.C. 2014) (holding that “[t]he applicable statute of limitations for breach

of contract in the District of Columbia is three years” (citing D.C. Code § 12–301(7))).

9 The denial of Plaintiff’s application to take the bar exam a fifth time occurred on November

24, 2010. See Notice of Filing II at 37. Yet, Plaintiff waited nearly six years to bring this

action—filing it on October 11, 2016. See Compl. Nothing in Plaintiff’s Complaint supports the

timeliness of filing this action against the COA almost three years after the limitations period

expired. Further, the court can conceive of no additional facts that Plaintiff could allege

consistent with his challenged pleading that would cure the timing deficiency. See Firestone,

. Therefore, Plaintiff’s claims against the COA are conclusively time-barred.

C.

Finally, Plaintiff failed to timely give notice of his intentional and negligent infliction

claims to the District of Columbia. A plaintiff suing the District of Columbia or any of its

agencies for unliquidated damages must provide written notice of the claims to the District within

six months of the alleged injury. See D.C. Code § 12–309; Brown v. District of Columbia,

(D.C. 2004) (“[C]ompliance with [§ 12–309] is mandatory as a prerequisite for

filing suit against the District.” (alteration in original) (internal quotation marks omitted)). The

COA caused Plaintiff’s alleged injury in November 2010, and the Mayor’s Office did so in May

2016. See Notice of Filing I at 5; Notice of Filling II at 37. Plaintiff gave the District no

administrative notice of his emotional distress claims within six months of those dates. Those

claims are therefore dismissed for this additional reason. 4

4 The court does not reach the issue of whether the COA is immune from suit. See Renewed Motion at 15. Although it is clear that individual committee members enjoy absolute immunity from suit, see Simons v. Bellinger,

(D.C. Cir. 1980), it is not certain whether such immunity extends to the COA itself.

10 IV.

Accordingly, Defendants’ Renewed and Narrowed Motion to Dismiss Plaintiff’s

Complaint is granted. A separate final order accompanies this Memorandum Opinion.

Dated: October 29, 2019 Amit P. Mehta United States District Court Judge

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