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The History of Immigrant Publishing Company, LLC
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Good Morning, Good Night and Good Afternoon!
Pick the one you like. If you have been on my website www.victoriasethunya.com you are probably here to leave your comments!
There you are sour dough, hehehe I mean there you are sweetie pie....
Take your ink and feather out and starting making good impressions! He hehehe. Nothing is free!
Gram read her copy of Silenced Appeal and the question she had for me was:"Why did you not have a chapter on your relationship with the professors at WSU".
I responded as follows:
We are friends and go to different places together...hiking, biking, cooking and such.
One day you decide to take my car without my permission, and not only do you disappear for one day, two, days, three days or a week, you reappear after two weeks with a dent on the passenger door.
I call the police on you. When I report what happened, the only time you will hear about biking, hiking and cooking is when the police ask if I know you or if I have met you before.
To me this moment would not be a time to talk about hiding rough trails of the Kilimanjaro.
I had brilliant professors at WSU in the Mathematics, Philosophy, English, Chemistry and Physiology Departments. Singularly, I brag about them and hold them to the highest caliber.
In short what happened with my US status is a matter owned by WSU administration, not professors.
Paul Figgins September 21 at 9:12am
It was really well done Victoria!! I loved the way the book was laid out. I liked the fragmented way you weaved Lesotho in to your experiences here in the US. I would have like to have read more about the mountain kingdom. I miss it. Mostly I liked the way you presented you children. I hope they read it and find a sense of gratitude for what thier mom is trying to do. Mostly I hope that things begin to work out for your future.
MEMORANDUM DECISION and REPORT
AND RECOMMENDATION TO GRANT
MOTIONS TO DISMISS
Case No: 1:08-cv-163 DAK
District Judge Dale A. Kimball
Magistrate Judge David Nuffer
Defendants Weber State University, Ann Millner, Jan Winniford,Richard Hill,Morteza Emami, Karen Garcia, Jeffrey Hurst, John Allred, Mark Simpson, Christopher Reviera, and Bret Ellis have filed motions to dismiss the claims brought against them by Plaintiff Victoria Sethunya. Under 28 U.S.C. § 636(b)(1)(B), District Judge Dale A.
Kimball referred this case to the magistrate judge for a report and recommendation on all issues.
Background
Plaintiff Victoria Sethunya is from Lesotho, Africa, and attended Weber State University (“WSU”) on a student and visitor’s visa. Sethunya alleges that in the fall of 2005, her name was improperly removed from WSU’s international student list as a result of a computer “glitch.” On November, 2, 2006, Defendant Richard Hill notified Sethunya about the computer glitch. 1 Hill wrote Sethunya a letter stating that her “legal status to be a student in the US had been accidentally taken away by the University
Computer system.” Despite Sethunya’s immigration status, WSU allowed Sethunya to re-enroll at WSU, and Sethunya graduated in May, 2007. In February, 2007, Sethunya applied for Optional Practical Training (“OPT”). As
part of that application process, Sethunya approached WSU to obtain an OPT I-20 form in the first part of 2007. Sethunya claims that on February 26, 2007, Defendant Karen
Garcia, a secretary for the International Students office, told her that “she could not give
[her an] OPT application packet because [she] was not in valid student status.”
Sethunya further claims that, on March 19, 2007, Defendant Richard Hill wrote her a letter stating that she would have to leave the country in order to validate the I-20 form. Nevertheless, on March 19, 2007, Sethunya filed her application for OPT with the
U.S. Citizenship and Immigration Services (“USCIS”).6 On July 18, 2007, USCIS requested further information from Sethunya in order to process her application.7
Specifically, USCIS requested that Sethunya submit a copy of her I-20 form, which had been properly certified by the designated school official recommending part-time or fulltime OPT.
End of Part 1
Sethunya states that on July 31, 2007, Defendant Morteza Emami told her that she should ask Senator Hatch’s office for help with her OPT application.9 However, on
August 13, 2007, Sethunya submitted an I-20 form to USCIS that had not been properly
certified by the designated school official.10 Accordingly, on October 4, 2007, USCIS determined that Sethunya had not established eligibility for the OPT program.11 In September, 2008, Sethunya filed a notice of claim with WSU.12
Sethunya claims that she has been damaged by WSU and the actions of the individual defendants. Consequently, Sethunya brought this action alleging numerous
state law and constitutional violations. In response, WSU and the individual defendants
filed motions to dismiss the suit.
End of Part 2
Analysis
1. WSU’s Motion to Dismiss
WSU claims it is immune from this suit because of the Eleventh Amendment. It is well-settled legal doctrine that the Eleventh Amendment bars federal lawsuits against a state or arms of the state.13 State universities are consistently found to be arms of the state.14 WSU is a state university and, as such, is an arm of the state of Utah. WSU correctly stated in its Motion to Dismiss that “[i]n order for anyone other than the federal government or another state to sue a state, the defendant state must either wave immunity or Congress must specifically abrogate Eleventh Amendment
End of Part 3
In this case, WSU has not affirmatively waived its Eleventh Amendment immunity and furthermore, the enactment of Utah’s Governmental Immunity Act did not waive the state’s Eleventh Amendment immunity.16 In addition, there is no Congressional abrogation of Eleventh Amendment immunity that would apply here.
Accordingly, because WSU is an arm of the state and Eleventh Amendment immunity is
not waived, WSU is immune from this suit.
Sethunya contends, however, that her claim against WSU for prospective injunctive relief is not barred by the Eleventh Amendment. Specifically, Sethunya seeks to have WSU “restore [her] to lawful status with immediate effect.”17 Sethunya relies
upon Ex parte Young18 and contends that her claim is not barred because it seeks prospective relief from Defendants’ ongoing alleged violations of federal law.
In Ex parte Young, the Supreme Court created the legal fiction that allows state officials to be sued in their official capacity for prospective injunctive relief. However,the doctrine announced in Ex parte Young does not apply to this case because it only
applies to suits against officials, and not against states or their entities. The Supreme
Court has stated that Ex parte Young “has no application in suits against the States and their agencies.”21 Therefore, because Sethunya’s claim for injunctive relief is solely against WSU and not against any officials, Ex parte Young is inapplicable and her claims against WSU are barred by the Eleventh Amendment.
Furthermore, Sethunya’s claim for injunctive relief against WSU is futile. WSU does not have the authority or the capability to restore Sethunya to lawful status. The type of relief Sethunya requests can only be obtained through the federal government. In
fact, Sethunya’s memorandum contains multiple references that make clear that only the
federal government can effect the requested change in her legal status. For example,Sethunya admitted that “the federal government issues and revokes foreign student status.”22 Thus, Sethunya’s claim for injunctive relief cannot possibly be ordered against WSU.
End of Part 4
Individual Defendants’ Motion to Dismiss Sethunya’s amended complaint alleges eighteen causes of action. Only two of those causes of action can possibly be construed as constitutionally based. The remaining sixteen causes of action are state law claims. We will address Sethunya’s constitutional claims first.
(a) Individual Defendants’ Motion to Dismiss Plaintiff’s Constitutional Claims Sethunya asserts two claims that appear to be constitutionally based. Her 17th cause of action is titled “Discrimination by geographical categories and/or by skin color and/or by physique and/or by not holding US status.” Sethunya’s 18th cause of
action is entitled “Cruel and Unusual Treatment.”
(i) Plaintiff’s Discrimination Claim
Sethunya’s “discrimination” claim alleges that “the University put [her] in
unlawful status and then subjected [her] to treatment given to those who do not duly deserve the benefits that [she] otherwise deserved.”25 As such, Sethunya has only alleged discrimination against WSU and not against any of the individual defendants. The Tenth Circuit has held that the plaintiff must plead sufficient facts establishing an affirmative
link between the defendant’s conduct and any constitutional violation.Here, Sethunya failed to allege that any of the individual defendants discriminated against her and also failed to delineate any alleged wrongful conduct by the individual defendants.
The remainder of Sethunya’s state law claims alleges libel and defamation. For each of these causes of action, Sethunya’s claim accrued when the misstatements occurred. However, Sethunya has failed to allege in her Amended Complaint when the allegedly libelous and defamatory statements were made. Therefore, this court is unable to determine whether Sethunya’s notice of claim for libel and defamation was timely
filed.
RECOMMENDATION
Because the plaintiff’s claims against WSU and the individual defendants are deficient, IT IS RECOMMENDED that WSU’s and the individual defendants’ motions to
dismiss be granted.
NOTICE
Within 10 days after being served with a copy of this recommended disposition, a
party may serve and file specific, written objections.38 A party may respond to another
party’s objections within 10 days after being served with a copy thereof. The rules
provide that the district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any portion of the
magistrate judge’s disposition to which specific written objection has been made in
accordance with this rule. The district judge may accept, reject or modify the recommended decision, receive further evidence, or re-commit the matter to the magistrate judge with instructions.
DATED this 20th day of October.
BY THE COURT:
_____________________________
David Nuffer
U.S. Magistrate Judge
The End
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