                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA

MAJED M. ALTHIABAT,

         Plaintiff,

         v.                                                          Civil Action 13-788 (JMF)

HOWARD UNIVERSITY et al.,

         Defendants.


                                   MEMORANDUM OPINION

         This matter is before the Court for all purposes. Currently pending and ready for review

is defendants’ Motion to Dismiss Or, in the Alternative, For Summary Judgment [#39]. For the

reasons stated below, the motion will be granted and plaintiff’s case will be dismissed in its

entirety.

    I.        Factual Background

         There is no genuine issue as to the following facts:

    1. Plaintiff became a student in the Department of Political Sciences Ph.D. program

         (hereinafter “the Program”) at Howard University (hereinafter “Howard”) in the fall

         semester of 2002. [#10] ¶ 6.

    2. Plaintiff was dismissed from the Program in 2005 and then readmitted in 2010. Id. ¶ 7.

    3. After his readmission, plaintiff received a letter from Howard placing a limit on the time

         by which plaintiff had to be admitted to candidacy — plaintiff was to complete his

         requirements by the fall semester of 2012. Id. ¶ 10,

    4. Plaintiff failed to complete the necessary requirements to be advanced to candidacy by

         that time. Id. ¶ 12.
5. Plaintiff acknowledges that Howard extended this time for a full year to the fall semester

     of 2013. [#10] ¶ 13.

6. In light of plaintiff’s lengthy matriculation, plaintiff’s failure to advance to the candidacy

     during his 10-year attempt to complete the Program, and Howard’s multiple

     accommodations and extensions to permit plaintiff to compete the Program, Howard sent

     plaintiff a letter dated April 8, 2013. [#10] ¶ 14.

7. That letter advised plaintiff that he was being dismissed from the Program as of the end

     of the spring semester of 2013 “due to his inability to perform satisfactorily at the

     graduate level.” Id.

8.   Less than a month later, Howard adjusted its position and sent plaintiff another letter

     dated May 6, 2013 (hereinafter “May Letter”). Id. ¶ 16.

9. The May Letter clarified that the Spring semester of 2013 included the summer 2013

     session, required plaintiff to pay in full his past accumulated balance of tuition and fees in

     the amount of $17,433.00 by May 17, 2013 before he could enroll for any summer

     courses and defend his dissertation, and further required plaintiff to defend his

     dissertation by July 27, 2013, lest he be immediately dismissed from the Program. Id.;

     [#10-3] at 1.

10. Plaintiff does not dispute that he owes Howard the debt of $17,433.00. [#10] ¶¶ 13, 18,

     22.

11. Pursuant to the Howard University Student Handbook for 2012-2013, all tuition and fees

     for the Fall semester of 2012 became due in full as of July 1, 2012, all tuition and fees for

     the Spring semester of 2012 became due in full as of December 21, 2012. [#39-1] at 2.




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12. Additionally, the Student Reference Manual effective Spring of 2012, includes a section

   entitled “Student Agreement to Accept Financial Terms and Conditions of Attendance at

   Howard University” (hereinafter “the Agreement”). [#39-2] at 2.

13. Pursuant to the Agreement, each student at Howard specifically “understand[s],

   acknowledge[s], and agree[s]” that “[b]y registering for classes at Howard University

   (University), [he or she] agree[s] to assume total and complete financial responsibility for

   all charges billed to [his or her] student account including, but not limited to: tuition, fees,

   housing, meals, books, health insurance, returned checks, parking and library fines.” Id.

14. Further, each student at Howard specifically “understand[s], acknowledge[s], and

   agree[s]” that “the University is advancing value to [him or her] in the form of

   educational services and that [his or her] right to register for any class is expressly

   conditioned upon [his or her] agreement to pay these student obligations. [He or she]

   further understand[s] that [he or she] will be prohibited from registering for any class

   until [his or her] student account reflects a zero balance.” Id.

15. Finally, each student at Howard specifically “understand[s], acknowledge[s], and agree[s]

   that “[i]n the event [his or her] student account is declared to be in default, [he or she]

   understand[s] the University may exercise any remedy allowed by law, including one or

   more of the following, without notice or demand (except as required by law):

       •   The University may declare the principal balance plus any late fees, fines or

           penalties immediately due and payable in full.

       •   The University may hire a third-party to collect the debt.” Id.

16. Despite the May Letter, plaintiff failed to pay in full his outstanding balance of fees and

   tuition on or before May 17, 2013. [#39] ¶ 16.


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   17. As a result, plaintiff could not, and did not, enroll in the summer 2013 session in order to

          complete the additional one-credit course to satisfy the credit-hour requirements of the

          Program. Id. ¶ 17.

   18. Also as a result, Plaintiff could not, and did not, enroll in the summer 2013 session in

          order to defend his dissertation. Id. ¶ 18.

   19. Consequently, plaintiff was dismissed from the Program without completing his degree.

          Id. ¶ 19.



   II.        Standard for Summary Judgment

   Motions for summary judgment are governed by Rule 56 of the Federal Rules of Civil

Procedure, which states that “[t]he court shall grant summary judgment if the movant shows that

there is no genuine issue as to any material fact and the moving party is entitled to a judgment as

a matter of law.” Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986).



   III.       Breach of Contract Claim

   A contract requires an exchange of promises for some consideration. Most fundamentally,

the Restatement of the Law of Contracts (Second) provides that: “An agreement is a

manifestation of mutual assent on the part of two or more persons.” RESTATEMENT (SECOND) OF

CONTRACTS § 3 (1981). A bargain is an agreement to exchange promises or to exchange a

promise for a performance or to exchange performances. Id. It then follows that “the formation

of a contract requires a bargain in which there is a manifestation of mutual assent to the

exchange and a consideration.” Id. § 17.



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    It is impossible to review the course of dealings between Howard and plaintiff and find in it a

contract between plaintiff and Howard that absolutely required Howard to permit the plaintiff to

finish his doctorate irrespective of any other consideration. To the contrary, if a contract were to

be implied between plaintiff and Howard, such a contract would permit the plaintiff to

matriculate only if he met the academic requirements and paid his tuition when it was due.

Plaintiff unquestionably failed to meet the latter condition and thereby breached the only contract

between him and Howard that could be implied from their dealings. Once plaintiff breached, he

relieved Howard of its obligation to permit him to matriculate. It is therefore Howard that may

complain of a breach, not plaintiff. Therefore, plaintiff’s contract claim fails.



    IV.      Constitutional Claims

    Plaintiff also asserts a claim premised on the due process and equal protection clauses of the

U.S. Constitution. [#28], at 3. However, as Judge Lamberth concluded in Remy v. Howard

University, 55 F. Supp. 2d 27 (D.D.C. 1999), Howard University is not a state actor subject to

constitutional restrictions. Id. at 28-29. Therefore, plaintiff’s constitutional claims fail as well.



    V.       Intentional Infliction of Emotional Distress

    The requirements for establishing the tort of intentional infliction of emotional distress are

demanding. The Chief Judge has stated:

          To recover on a claim for intentional infliction of emotional distress, a plaintiff must
          demonstrate extreme and outrageous conduct which intentionally or recklessly cause[d]
          severe emotional distress. Liability will be imposed only for conduct so outrageous in
          character, and so extreme in degree, as to go beyond all possible bounds of decency, and
          to be regarded as atrocious, and utterly intolerable in a civilized community.




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Thompson v. Jasas Corp., 212 F. Supp. 2d 21, 27-28 (D.D.C. 2002) (internal citations and

quotations omitted).


         Plaintiff’s best argument – that Howard would not let him continue to matriculate until he

paid his tuition – cannot possibly meet this demanding standard. Defendant is entitled to

summary judgment on the intentional infliction of emotional distress claim as well.



   VI.      Claim Against Dean Harris

   Since the contractual and intentional infliction of emotional distress claims fail on their

merits as to Howard, they fail for the same reason as to Dean Harris. There is, however, one

additional possible theory of recovery that should be explored given plaintiff’s pro se status, and

the policy of construing pro se filings liberally. See Estelle v. Gamble, 429 U.S. 97, 106 (1976).

An action would lie against an individual who subjects a person to the deprivation of “any rights,

privileges, or immunities secured by the Constitution and laws…” 42 U.S.C. § 1983. But, the

person sued must have acted “under color of any statute, ordinance, regulation, custom or usage

of any State or Territory or the District of Columbia…” Id. Clearly Dean Harris never acted

under color of any statute when he took the actions about which Plaintiff complains. Thus, an

action under 42. U.S.C. section 1983 would fail as well.



   VII.     Conclusion

   There is no genuine issue of material fact and therefore the defendants are entitled to

judgment as a matter of law. An Order accompanies this Memorandum Opinion.




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                      Digitally signed by John M. Facciola
                      DN: c=US, st=DC, l=Washington,
                      email=John_M._Facciola@dcd.usco
                      urts.gov, o=United States District
                      Court, cn=John M. Facciola
                      Date: 2014.12.24 12:12:12 -05'00'
    ________________________________
    JOHN M. FACCIOLA
    UNITED STATES MAGISTRATE JUDGE




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