                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-12-2006

Koger v. Kaplan Inc
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3375




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Recommended Citation
"Koger v. Kaplan Inc" (2006). 2006 Decisions. Paper 756.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/756


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EPS-21                                                         NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      NO. 05-3375
                                   ________________

                               TODD ELLIOTT KOGER,
                                             Appellant
                                       vs.

       KAPLAN INC., d/b/a KAPLAN UNIVERSITY; KAPLAN COLLEGE;
     KAPLAN COLLEGE .COM, AND/OR; CONCORD UNIVERSITY OF LAW
                              _____________

                    On Appeal From the United States District Court
                         For the Western District of Pennsylvania
                               (D.C. Civ. No. 05-cv-00434)
                    District Judge: Honorable Judge David S. Cercone
                      _____________________________________

         Submitted For Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
                                   January 25, 2006
              Before: FISHER, ALDISERT AND WEIS, Circuit Judges.
                          Filed: July 12, 2006
                              _______________________

                                       OPINION
                               _______________________

PER CURIAM.

              Appellant, Todd Elliot Koger, appeals the District Court’s order dismissing

his pro se civil rights complaint. Upon consideration of the record, we conclude that the

appeal presents no arguable issues of fact or law. Thus, we will dismiss it pursuant to 28

U.S.C. § 1915(e)(2)(B).


                                             1
              In March 2005, Koger filed the underlying complaint pursuant to 42 U.S.C.

§ 1983 in the United States District Court for the Western District of Pennsylvania

together with a motion seeking a temporary restraining order, alleging that he was

unconstitutionally denied readmission into an online law school program. As noted by

the District Court, Koger’s allegations were essentially predicated on same events and

circumstances underlying a nearly identical action docketed at W.D. Pa. Civ. No. 03-cv-

01400. That action was dismissed by the District Court with judgment being entered in

favor of the named defendants. We affirmed that judgment. See C.A. No. 05-3702.

              As the District Court correctly pointed out, the only new averment of legal

significance is one alleging that defendants have refused to respond to Koger’s numerous

“petitions” for readmission, purportedly on the basis of his failure to comply with an

e:mail directive from Associate Dean Cassandra Colchagoff indicating that appellant

include in his readmission application a statement noting that he “understand[s] the nature

and severity of the actions that led to [his] suspension and what actions [he] will take to

avoid further violations.” Koger alleges that this requirement of readmission is an act of

retaliation for his complaints of race discrimination, and amounts to a violation of

numerous constitutional, statutory and common law rights.

              The District Court, however, concluded that Koger’s complaint fails to state

a claim upon which relief can be granted or is otherwise based on an indisputably

meritless legal theory. We agree. The District Court correctly determined that, because

the record in civil action 03-cv-01400 establishes that Koger could not prevail against

                                              2
defendants on his claims of discrimination based on the events leading to his suspension,

it follows that they cannot be held to have violated his constitutional or statutory rights by

simply requiring him to seek readmission in accordance with Concord’s applicable school

policies and procedures, which are neutral and rational on their face. We further agree

with the District Court’s determination that the mere repeated denials of readmission

petitions, in and of itself themselves, do not provide a basis for a federal cause of action.

              Accordingly, we will dismiss appellant’s appeal pursuant to 28 U.S.C. §

1915(e)(2)(B), as it is lacking in legal merit. Neitzke v. Williams, 490 U.S. 319 (1989).
