UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

Jimmy Smith Case No. 21-cv-133-PJB-AKJ v. Opinion No.

Roger Williams University Law School

ORDER

Plaintiff Jimmy Smith, a law school graduate appearing pro

se, has sued his alma mater, Roger Williams University Law

School (RWULS). Mr. Smith claims that RWULS discriminated

against him because of his race and breached a contractual

promise to provide him with a clinical placement. Invoking Fed.

R. Civ. P. 12(b)(6), RWULS moves to dismiss (Doc. No. 57),

arguing that Mr. Smith’s complaint fails to state a claim for

relief. RWULS also argues that Mr. Smith’s complaint violates

Fed. R. Civ. P. 8(a)(2) (requiring a “short plain statement of

the claim”) and 10(b) (requiring separately numbered

paragraphs). Mr. Smith has timely objected (Doc. No. 78), to

which RWULS has replied (Doc. No. 79). The motion is granted in

part and denied in part. Accepting all of Mr. Smith’s well-

pleaded facts as true, the court finds that Mr. Smith has failed

to state claim for racial discrimination, but has adequately set

forth facts to support a claim for breach of contract. Factual Background 1

Mr. Smith, an African American, began his studies at RWULS

in the Fall of 2016. He alleges that, due to his race, RWULS

took adverse actions against him. Specifically, Mr. Smith avers

that he has been outspoken on racial issues since 2016 and that

“when [he] talk[ed] about issues of race and [his] white

classmates complained, he was called by the school’s Title IX

coordinator to talk about the issue.” Mr. Smith has offered no

details of the resulting discussions, other than noting that

they did not result in any formal disciplinary proceeding

against him. He alleges that such meetings were not held when

he complained about white classmates.

Mr. Smith further asserts that RWULS dismissed a

disciplinary complaint he lodged against a white female student

as de minimis but did not dismiss disciplinary proceedings

against him brought by the same student. His complaint contains

no information as to results of those proceedings. He also

claims that the school commenced disciplinary proceedings

1Unless indicated otherwise, the facts are taken from Mr. Smith’s complaint (Doc. No. 1) and amended complaint (Doc. No. 5), the latter of which the Magistrate Judge construed as a “complaint addendum” during her preliminary review of this case. See February 22, 2022, Report and Recommendation (Doc. No. 45) at 1, adopted, April 15, 2022 (Doc. No. 62).

2 against him only after the sole African American on the

disciplinary board contracted Covid-19.

Mr. Smith claims that he was denied the opportunity to

participate in a RWULS clinical program because of a “run-”in”

with the law, while white students with legal issues have not

been denied those opportunities and white faculty members have

not been disciplined for their legal troubles. He alleges that

the school did so despite “guaranteeing” students a clinical

placement. He also claims that the school has retaliated

against him for complaining about racial issues by “preventing

him from accessing the same resources” as white students.

Procedural History

Mr. Smith filed his original complaint (Doc. No. 1) on

March 19, 2021, and his complaint addendum (Doc. No. 5) a few

weeks thereafter. On preliminary review, the Magistrate Judge,

construing the pro se complaint liberally, allowed claims for

racial discrimination (Claims and 1 and 2) and breach of

contract (Claim 3) to proceed. February 16, 2022, Report and

Recommendation (Doc. No. 45) at 4-5. The court construed claims

1 and 2 as arising under

and claim 3 as arising

under common law contract principles. The court allowed those

claims to proceed without prejudice to RWULS’s “ability to move

to dismiss on any appropriate basis.” February 16, 2022 Order

(Doc. No. 46) at 1.

3 Standard of Review

To survive a Rule 12(b)(6) motion to dismiss for failure to

state a claim, a plaintiff must make factual allegations

sufficient to “state a claim to relief that is plausible on its

face.” Ashcroft v. Iqbal,

(2009) (quoting Bell

Atl. Corp. v. Twombly,

(2007)). This standard

“demands more than an unadorned, the-defendant-unlawfully-harmed-

me accusation.”

A claim is facially plausible if it “pleads

factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct

alleged.”

In testing a complaint's sufficiency, the court employs a

two-step approach. See Ocasio–Hernández v. Fortuño-Burset,

(1st Cir. 2011). First, the complaint is screened for

statements that “merely offer legal conclusions couched as fact

or threadbare recitals of the elements of a cause of action.”

(cleaned up). A claim consisting of little more than

“allegations that merely parrot the elements of the cause of

action” may be dismissed.

Second, after crediting as true

all non-conclusory factual allegations and the reasonable

inferences drawn from those allegations, the court determines if

the claim is plausible.

The plausibility requirement “simply

calls for enough fact to raise a reasonable expectation that

discovery will reveal evidence” of illegal conduct. Twombly, 550

4 U.S. at 556. The “make-or-break standard” is that those

allegations and inferences, “taken as true, must state a

plausible, not a merely conceivable, case for relief.”

Sepúlveda–Villarini v. Dep't of Educ. of P.R.,

(1st Cir. 2010).

Analysis

A. Fed. R. Civ. P. 8(a) and 10(b)

Before analyzing Mr. Smith’s claims under Rule 12(b)(6),

the court first addresses the defendant’s argument that the

complaint should be dismissed pursuant to Fed. R. Civ. P. 8(a)

and 10(b).

Rule 8(a)(1) of the Federal Rules of Civil Procedure

requires “a short and plain statement of the claim showing that

the pleader is entitled to relief[.]” The pleading must “‘give

the defendant fair notice of what the ... claim is and the

grounds upon which it rests[.]’” Twombly,

(alteration in original) (quoting Conley v. Gibson,

(1957)). “At a bare minimum, even in this age of notice

pleading, a defendant must be afforded both adequate notice of

any claims asserted against him and a meaningful opportunity to

mount a defense.” Diaz- Rivera v. Rivera-Rodriguez,

(1st Cir. 2004) (quoting Rodriguez v. Doral Mortg. Corp.,

(1st Cir. 1995)).

5 Additionally, “[a] party must state its claims or defenses

in numbered paragraphs, each limited as far as practicable to a

single set of circumstances.” Fed. R. Civ. P. 10(b). “If doing

so would promote clarity, each claim founded on a separate

transaction or occurrence – and each defense other than a denial

– must be stated in a separate count or defense.”

As the Magistrate Judge noted, Mr. Smith’s complaint and

addendum contain “often-scattershot allegations.” Report and

Recommendation (Doc. No 45) at 5. Nevertheless, the court is

persuaded that the Magistrate Judge’s delineation of Mr. Smith’s

claims provides sufficient clarity to allow the defendant

“adequate notice of any claims asserted against him and a

meaningful opportunity to mount a defense.” Diaz-Rivera,

. Accordingly, dismissal under Fed. R. Civ. P. 8 or 10

is unwarranted. 2

2The court also rejects Mr. Smith’s argument that dismissal under Rule 12(b)(6) for failure to state a claim is precluded by the Magistrate Judge allowing those claims to proceed. In the first instance, the Magistrate Judge’s service order (Doc. No. 46) was issued “without prejudice to the defendant’s ability to move to dismiss the claims on any appropriate basis.” Id. at 1. In addition, the defendant has supported its motion with documents -- unavailable to the Magistrate Judge -- that the court may consider on a motion to dismiss (such as the RWULS Handbook) because they were referred to in Mr. Smith’s complaint. Finally, the court is disinclined to deprive the defendant of its right to seek relief under the Federal Rules of Civil Procedure by essentially considering its motion to be “denied” before it was ever filed, or the defendant had an opportunity to present legal argument. See Aleman v. Dart, No. 09-cv-6049,

, at *3-4 (N.D. Ill. Nov. 23, 2010)

6 B. Racial Discrimination Claims

Liberally construing Mr. Smith’s complaint and addendum,

the court allowed the following discrimination claims to proceed

under

:

Claim 1(a) -- RWULS and its professors summarily dismissed Mr. Smith’s complaints about racial insensitivity and discrimination at RWULS;

Claim 1(b) -- RWULS and its professors handled internal complaints white students lodged against Mr. Smith differently than complaints he lodged against white students;

Claim 2(a) -- RWULS retaliated against Mr. Smith for filing this lawsuit in violation of his First Amendment rights; and

Claim 2(d) -- RWULS treated Mr. Smith differently than other students and faculty because of his race.

Report and Recommendation (Doc. No. 45) at 4-5.

Section 1981 provides that “[a]ll persons ... shall have

the same right in every State and Territory to make and enforce

contracts ... as is enjoyed by white citizens.”

(a). To state a cognizable racial discrimination claim, a

plaintiff must establish that “(1) [he] is a member of a racial

minority; (2) the defendant discriminated against [him] on the

basis of [his] race; and (3) the discrimination implicated one

or more of the activities listed in the statute, including the

(rejecting application of “law of the case” doctrine to defendant’s motion to dismiss pro se complaint that was allowed to proceed after preliminary review).

7 right to make and enforce contracts.” Hammond v. Kmart Corp.,

(1st Cir. 2013). “To succeed on his race-

based claims, [a plaintiff] must show, among other things, that

[the defendant] acted with discriminatory intent.” Doe v. Brown

Univ.,

, 208 (1st Cir. 2022). In sum, a §

1981 plaintiff must “initially plead and ultimately prove that,

but for race, it would not have suffered the loss of a legally

protected right.” Comcast Corp. v. Nat'l Ass'n of African

American-Owned Media,

, (2020).

Stripped of conclusory factual allegations, the court finds

that Mr. Smith has failed to plead facts sufficient to support a

plausible claim that RWULS discriminated against him because of

his race.

Each of Mr. Smith’s discrimination claims alleges that he

was treated differently than white students. Although

“[i]ntentional racial discrimination can be inferred from

disparate treatment of races[,]” Doe v. Trs. Of Dartmouth Col.,

Civ. No. 21-cv-85-JD,

, at * 8 (D.N.H. July 8,

2021), Mr. Smith’s complaint and addendum contain only

conclusory allegations of discrimination meted out to him. As

previously described, his original complaint alleges, without

any further explanation, that RWULS “gives harsher punishments

to persons of color who are accused by white students.” Compl.

(Doc. No. 1-1) ¶ 11. He further alleges that he made a

8 complaint against two white students that RWULS denied as de

minimis, but a white student’s complaint against him was “deemed

more than de minimis.” Compl. Add. (Doc. No. 5) ¶ 10. In

addition, Mr. Smith asserts that he knows of “other white

students who had run-ins with the law” who received clinical

placements, while he did not. Id. ¶ 15. As for his retaliation

claim, Mr. Smith alleges that he was “denied the same resources”

as white students in retaliation for his complaints about racial

insensitivity. Id. ¶ 18.

RWULS argues that Mr. Smith’s claims of disparate treatment

are merely conclusory and lack sufficient factual details to set

forth a plausible claim for relief. The court agrees. Mr.

Smith’s assertions that RWULS administers “harsher punishments

to persons of color,” Compl. (Doc. No. 1-1) at 6, and that it

treated his complaint against two white students less seriously

than a complaint against him, Compl. Add. (Doc. No. 5) at 2,

lack any information about the nature and circumstances of the

complaints at issue or any resulting adverse action and

therefore do not give rise to a plausible inference of disparate

treatment. See Doe v. Amherst Coll.,

(D. Mass. 2017) (granting judgment on the pleadings to college

where plaintiff failed to allege that “other students who were

found responsible for similar violations and received lesser

punishments.”). Nor -- given that Mr. Smith himself was

9 involved in two of the complaints noted above -- is this a

situation where more details are “likely within [the

defendant’s] control.” See Doe v. Tr. of Dartmouth Coll.,

at *8.

While Mr. Smith is not required to plead specific details

about the putative comparator cases, he has, unlike the

plaintiff in Doe v. Tr. Of Dartmouth Coll., failed to identify

with any specificity a “comparator group” that “was treated

differently due to their race.” In that case, the plaintiff

alleged that “at least 9 Black male football players were

suspended or expelled” following disciplinary proceedings, but

no white football players were referred for formal investigation

during that same time period.” In addition, the plaintiff

alleged that “in at least one case a white student-athlete was

allowed [to] delay the imposition of a [disciplinary] suspension

so that he could complete his athletic season”, while no Black

football players were not offered the same opportunity.

Similarly, in Doe v. Harvard Univ.,

,

67 (D. Mass. 2020), the court denied the defendant’s motion to

dismiss because the plaintiff alleged a “comparator group –

Caucasian students accused of similar sexual misconduct” and

that the comparator group was treated differently. Mr. Smith’s

allegations, by contrast, lack any indication as to the

similarity of his conduct, e.g., “run-ins with the law,” to the

10 conduct of the white students in question, or as to the

disparity in punishment. As such, he has failed to plausibly

allege that race was a but-for cause of his alleged

mistreatment. And because the complaint and addendum lack any

factual allegations to support a plausible inference of racial

discrimination, a retaliation claim under § 1981 also fails.

See Veal v. Comm'r of Bos. Ctrs. for Youth & Fams., No. 21-CV-

10265-ADB,

, at *5 (D. Mass. Mar. 10, 2022)

(observing that plaintiff in section 1981 retaliation claim must

allege retaliation for viable complaints of racial

discrimination). Claims 1 and 2 are therefore dismissed for

failure to state a claim.

C. Breach of Contract

Mr. Smith alleges that RWULS breached its “guarantee” that

students would receive a clinical placement. While the lack of

clinical experience did not prevent Mr. Smith from graduating,

he asserts that it left him less prepared for a legal career.

Under Rhode Island law, the relationship between a student

and a private university is based in contract. Doe v. Brown

Univ.,

, 67 (1st Cir. 2019). To state a viable

breach of contract claim, “plaintiffs must prove that a valid,

binding contract existed, the defendant breached the terms of

the contract, and the plaintiffs sustained damages as a result

of the breach.” Brooks v. AIG SunAmerica Life Assur. Co., 480

(1st Cir. 2007). When alleging a breach, the

plaintiff must “describe[e], with substantial certainty, the

specific contractual promise the defendant failed to keep.

(quotation omitted).

Courts may rely on ‘catalogs, manuals, handbooks, etc.’ to

assist in the determination of the terms of contract with an

academic institution. Brown v. Suffolk Univ., No. CV 19-40062-

DHH,

, at *5 (D. Mass. Mar. 31, 2021) (cleaned

up). RWULS, citing to the lack of any such “guarantee” in its

Student Handbook (Doc. No., 57-2), claims that no such

contractual promise exists. Information on the school’s

website, however, prevents the court from dismissing this claim.

On the landing page of RWULS’ website is a tab titled “Why RWU

Law?” The drop-down menu from that tab includes a link titled

“Guaranteed Clinical Experience.” That link leads to a page

titled “The Clinical Guarantee,” with those words repeated in a

large font at the top of the following body of text:

RWU Law guarantees that every qualified student will be afforded a substantial, hands-on clinical experience. Just tell us where you want to go – and we'll help you get there. An effective, modern legal education requires both a strong academic grounding, and a robust regimen of hands-on experience.

https://law.rwu.edu/why-rwu-law/clinical-guarantee (last visited

Feb. 14, 2023). Then, after four bullet-pointed paragraphs

12 detailing the attributes of the clinical program, the last entry

on the page is “WE GUARANTEE IT.”

In the court’s view, this “clinical guarantee” language is

sufficiently specific to defeat RWULS’s motion to dismiss Mr.

Smith’s breach of contract claim. See Miranda v. Xavier Univ.,

, 970 (S.D. Ohio 2022) (denying college’s

motion to dismiss student’s breach of contract claim premised on

website’s “guarantee . . .[of] placement in a quality clinical

environment.”); see also Ford v. Rensselaer Polytechnic. Inst.,

, 416 (N.D.N.Y. 2020) (college’s motion for

judgment on the pleadings denied because circular “is

consistently declaratory, with several of its statements

beginning with the phrase ‘we will.’”); but cf. Polley v.

Northwestern Univ., Case No. 20 C 4798,

, at *8

(N.D. Ill. Sept. 15, 2021) (finding that the descriptions on the

university's website “do not have any language that indicates a

guarantee [of in-person instruction] has been made if

prospective students accept the offer of admissions”). And

while, as RWULS points out in its motion, the RWULS “guarantee”

is couched in terms of “qualified students,” RWULS’s

consideration of Mr. Smith’s “qualifications” is not an issue

that can be resolved on a motion to dismiss. Similarly, Mr.

Smith’s assertion that his career has been hampered by lack of

clinical experience is a sufficient allegation of damage to

13 withstand amotion to dismiss. Accordingly, the court declines

to dismiss Mr. Smith’s breach of contract claim.

Conclusion

For the foregoing reasons, the defendant’s motion to

dismiss is granted as to plaintiff’s racial discrimination

claims (Claims 1 and 2) and denied as to his breach of contract

claim (Claim 3). (Doc. No. 57).

SO ORDERED.

/s/ Paul J. Barbadoro Paul J. Barbadoro United States District Judge

February 16, 2023

cc: Jimmy Smith, pro se Counsel of Record

14