Abdul Rehman Farrukh v. University of South Florida Board of Trustees

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-13345
Non-Argument Calendar
____________________
ABDUL REHMAN FARRUKH,
Plaintiff-Appellant,
versus
UNIVERSITY OF SOUTH FLORIDA BOARD
OF TRUSTEES,
(USF),
Defendant-Appellee,
ANNETTE BLOISE,
et al.,
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2 Opinion of the Court 21-13345
Defendants.
____________________
Appeal from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:20-cv-00073-VMC-TGW
____________________
Before JILL PRYOR, BRANCH, and EDMONDSON, Circuit
Judges.
PER CURIAM:
Plaintiff Abdul Farrukh, now proceeding
pro se,1 appeals the
district court’s dismissal -- for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6) -- of Plaintiff’s counseled fifth amended
complaint. In this civil action, Plaintiff purported to assert against
the University of South Florida Board of Trustees (“Board”) claims
under Title VI of the Civil Rights Act of 1964 (“Title VI”) for un-
lawful discrimination based on race and national origin and for un-
lawful retaliation. Plaintiff also appeals the district court’s denial of
Plaintiff’s
pro se second motion for reconsideration and for leave
to amend. No reversible error has been shown; we affirm.
1 We read liberally briefs filed by
pro se litigants.
See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008). We also construe liberally
pro se pleadings.
See
Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir. 1998).
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21-13345 Opinion of the Court 3
I.
This civil action arises from Plaintiff’s enrollment as an un-
dergraduate student at the University of South Florida (“USF”).
Plaintiff describes himself as Asian and as a Pakistani national.
Briefly stated, Plaintiff alleges that -- on several occasions between
2014 and 2019 -- USF employees and Board members discriminated
against Plaintiff based on Plaintiff’s race and national origin. Plain-
tiff also contends that USF employees retaliated unlawfully against
him after Plaintiff complained about the alleged discriminatory
conduct.
Plaintiff filed
pro se this civil action in January 2020. The
district court dismissed without prejudice Plaintiff’s first and sec-
ond amended complaints as impermissible shotgun pleadings. The
district court granted Plaintiff leave to file a third amended com-
plaint.
Plaintiff -- then through a lawyer -- filed a third amended
complaint. Plaintiff asserted claims against the Board under Title
VI for unlawful race and national-origin discrimination and claims
under Florida law. The district court dismissed Plaintiff’s third
amended complaint as a shotgun pleading, noting that Plaintiff had
failed to cure the deficiencies identified in Plaintiff’s earlier plead-
ings. The district court later dismissed -- as a shotgun pleading --
Plaintiff’s counseled fourth amended complaint.
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4 Opinion of the Court 21-13345
On 19 March 2021, Plaintiff filed a fifth amended complaint
with the assistance of his lawyer: the complaint pertinent to this
appeal. Plaintiff attempted to assert claims for race and national-
original discrimination and for retaliation under Title VI. Plaintiff
also attempted to assert state-law claims for race discrimination,
national-origin discrimination, retaliation, and for breach of con-
tract.
On 27 May 2021, the district court dismissed with prejudice
Plaintiff’s fifth amended complaint. The district court dismissed
Plaintiff’s Title VI claims for failure to state a claim under Rule
12(b)(6). About Plaintiff’s discrimination claim, the district court
explained that Plaintiff failed to allege facts sufficient to establish
discriminatory intent or to show that the Board treated Plaintiff dif-
ferently from the way it treated non-Pakistani students in compa-
rable circumstances. About Plaintiff’s retaliation claim, the district
court determined that Plaintiff failed to allege facts that showed
that Plaintiff had engaged in protected activity or that showed a
causal connection between protected activity and the alleged mis-
treatment. The district court dismissed Plaintiff’s state-law claims
for lack of jurisdiction, concluding that the Board -- as an arm of
the State of Florida -- was immune to suit under the Eleventh
Amendment.2
2 In his appellate brief, Plaintiff raises no challenge to the district court’s dis-
missal of Plaintiff’s state-law claims based on Eleventh Amendment immunity;
those claims are not before us on appeal.
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21-13345 Opinion of the Court 5
Plaintiff filed a counseled motion to alter or amend the judg-
ment under Fed. R. Civ. P. 59(e) and 60(b)(1). On 20 July 2021, the
district court denied the motion and also denied Plaintiff leave to
amend his complaint.
Plaintiff’s lawyer withdrew from the case. Plaintiff then filed
pro se a second motion for reconsideration under Rule 60(b). The
district court denied Plaintiff’s motion on 31 August 2021. The dis-
trict court also denied Plaintiff’s request for leave to amend. This
appeal followed.
II.
A.
We first address the scope of our jurisdiction over this ap-
peal. The Board contends that we lack jurisdiction to consider the
district court’s order dismissing Plaintiff’s fifth amended complaint
because Plaintiff failed to file a timely notice of appeal designating
that order.3 We disagree.
That “the timely filing of a notice of appeal is ‘mandatory
and jurisdictional’” is well established.
See Pinion v. Dow Chem.,
U.S.A., 928 F.2d 1522, 1525 (11th Cir. 1991). Here, we read Plain-
tiff’s notice of appeal -- designating the district court’s 31 August
3 The Board also argues that Plaintiff has failed to notice sufficiently his intent
to appeal the district court’s 20 July 2021 denial of his first motion for recon-
sideration. We agree. Plaintiff’s notice of appeal neither identifies the district
court’s 20 July order nor indicates an intent to appeal that order. The district
court’s 20 July order is thus not properly before us on appeal.
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2021 order denying Plaintiff’s second Rule 60(b) motion for recon-
sideration -- as encompassing the district court’s 27 May 2021 order
dismissing Plaintiff’s fifth amended complaint.
See Fed. R. App. P.
3(c)(5)(B) (“In a civil case, a notice of appeal encompasses the final
judgment . . . if the notice designates . . . an order described in Rule
4(a)(4)(A)); Fed. R. App. P. 4(a)(4)(A) (listing, among other things,
an order disposing of a motion for relief under Rule 60).
In addition, Plaintiff’s notice of appeal was timely filed for
the district court’s 27 May 2021 order. When -- as in this case -- the
district court fails to enter a separate judgment pursuant to Fed. R.
Civ. P. 58, the 30-day time to appeal begins after “150 days have
run from” the order’s entry in the civil docket.
See Fed. R. App. P.
4(a)(1)(A), (a)(7); Fed. R. Civ. P. 58. Plaintiff’s 29 September 2021
notice of appeal was filed well before the pertinent deadline.
In sum, we have jurisdiction to review both the district
court’s 27 May 2021 dismissal of Plaintiff’s fifth amended complaint
and the district court’s 31 August 2021 order denying Plaintiff’s mo-
tions for relief under Rule 60(b) and for leave to amend.
B.
“We review
de novo a district court’s dismissal under Rule
12(b)(6) for failure to state a claim, accepting the allegations in the
complaint as true and construing them in the light most favorable
to the plaintiff.”
Jackson v. BellSouth Telecomms., 372 F.3d 1250,
1262 (11th Cir. 2004). We review for abuse of discretion both the
denial of a motion for reconsideration and the denial of a motion
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21-13345 Opinion of the Court 7
for leave to amend a pleading.
See Blackburn v. Shire US Inc., 18
F.4th 1310, 1316 (11th Cir. 2021).
A complaint must contain “a short and plain statement of
the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). “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.”
Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quotations omitted). To state a plausible claim for re-
lief, a plaintiff must go beyond pleading merely the “sheer possibil-
ity” of unlawful activity by a defendant and must offer “factual con-
tent that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Id. In other words,
the plaintiff’s “[f]actual allegations must be enough to raise a right
to relief above the speculative level.”
Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). “A pleading that offers ‘labels and conclu-
sions’ or ‘a formulaic recitation of the elements of a cause of action
will not do.’”
Iqbal, 556 U.S. at 678. “Nor does a complaint suffice
if it tenders naked assertions devoid of further factual enhance-
ment.”
Id. (quotations and alteration omitted);
see Oxford Asset
Mgmt. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002) (“[C]onclu-
sory allegations, unwarranted deductions of facts or legal conclu-
sions masquerading as facts will not prevent dismissal.”).
Title VI “prohibits any recipient of federal financial assis-
tance from discriminating on the basis of race, color, or national
origin in any federally funded program.”
Burton v. City of Belle
Glade, 178 F.3d 1175, 1202 (11th Cir. 1999); 42 U.S.C. § 2000d. To
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8 Opinion of the Court 21-13345
state a claim under Title VI, “a plaintiff must establish discrimina-
tory intent.”
Burton, 178 F.3d at 1202 (emphasis omitted).
Title VI’s prohibition on racial discrimination is also con-
strued as prohibiting retaliation for complaining about discrimina-
tion.
See Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 178
(2005) (recognizing a cause of action for retaliation under Title IX);
Shotz v. City of Plantation, 344 F.3d 1161, 1170 n.12 (11th Cir. 2003)
(construing Titles VI and IX
in pari materia). To establish a
prima
facie case of retaliation, a plaintiff must show (1) that he engaged
in statutorily protected expression; (2) that he was subjected to a
materially adverse act; and (3) that a causal link existed between
the two events.
See Pennington v. City of Huntsville, 261 F.3d
1262, 1266 (11th Cir. 2001) (addressing a retaliation claim under Ti-
tle VII). “To establish a causal connection, a plaintiff must show
that the decision-makers were aware of the protected conduct, and
that the protected activity and the adverse actions were not wholly
unrelated.”
Shannon v. BellSouth Telecomms., Inc., 292 F.3d 712,
716 (11th Cir. 2002) (quotation omitted).
The district court determined properly that Plaintiff failed to
state a claim for relief under Title VI. Plaintiff failed to allege facts
sufficient to allow a reasonable inference that the complained-of
instances of mistreatment were motivated by an unlawful discrim-
inatory intent. Plaintiff’s fifth amended complaint includes conclu-
sory allegations that USF employees treated Plaintiff less favorably
than they treated non-Pakistani students. Plaintiff identifies no stu-
dent who was treated more favorably than Plaintiff under
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21-13345 Opinion of the Court 9
comparable circumstances. Nor does Plaintiff allege factual details
about the circumstances surrounding his alleged mistreatment or
about the circumstances and treatment of other non-Pakistani stu-
dents that would support a plausible inference that Plaintiff’s mis-
treatment was motivated by Plaintiff’s race or national origin.
Plaintiff’s retaliation claim fails for the same reason. In his
fifth amended complaint, Plaintiff alleges generally that he com-
plained about and “exposed” the discriminatory practices at USF.
Absent factual allegations about the nature and timing of Plaintiff’s
complaints and to whom Plaintiff complained, these broad allega-
tions are insufficient to demonstrate that Plaintiff engaged in pro-
tected activity. Nor has Plaintiff alleged facts sufficient to support
a reasonable inference that Plaintiff’s mistreatment was causally
linked to his purported protected activity. Because Plaintiff has
failed to state a plausible claim for relief under Title VI, the district
court concluded properly that Plaintiff’s Title VI claims were sub-
ject to dismissal under Rule 12(b)(6).
The district court abused no discretion in denying Plaintiff’s
pro se second Rule 60(b) motion for reconsideration. In support of
his Rule 60(b) motion, Plaintiff relied chiefly on materials Plaintiff
contends are “newly discovered evidence” of an alleged scheme to
coerce Plaintiff to become a spy for the United States. These ma-
terials included USF policy manuals last amended in 2017 and in
2020 and a book published in 2017. Because these materials already
existed -- and could have been discovered by Plaintiff -- before
Plaintiff filed his fifth amended complaint in March 2021, they
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constitute no “newly discovered evidence” that might support re-
consideration.
See Wilchombe v. TeeVee Toons, Inc., 555 F.3d
949, 957 (11th Cir. 2009) (“A motion for reconsideration cannot be
used to ‘relitigate old matters, raise arguments or present evidence
that could have been raised prior to the entry of judgment.’”).
The district court also acted within its discretion by denying
Plaintiff’s request for leave to amend his complaint. Plaintiff had
already been provided five opportunities to amend his complaint -
- both with and without the assistance of a lawyer -- and had failed
repeatedly to cure the deficiencies in his pleading. Under the cir-
cumstances presented in this case, the district court determined
reasonably that further amendment would be futile.
AFFIRMED.
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