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Jolly v. Vermont Board of Nursing Phyllis Mitchel

United States District Court, E.D. Pennsylvania

May 24, 2019

MAKETA S. JOLLY, Plaintiff,


          JOEL H. SLOMSKY, J.

         Pro se Plaintiff Maketa S. Jolly has filed a handwritten Complaint for Violation of Civil Rights using this Court's standard form. She has also appended a lengthy typed Complaint. She asserts she is located in Aston, Pennsylvania. Named as Defendants on the handwritten form are “State of Vermont Board of Nursing Phyllis Mitchell, ” the “State of New Jersey Board of Nursing Joanne Leone, ” and “Excelsior College Mary Lee Pound Dean of Nursing.” (ECF No. 2 at 3-4.) She states on the form that each Defendant is sued in their official capacity.[1] (Id.) The typewritten Complaint names as Defendants the State of Vermont, the State of New Jersey and Excelsior College. (Id. at 13.) Jolly also seeks leave to proceed in forma pauperis. For the following reasons, the Court will grant leave to proceed in forma pauperis. The Court will also dismiss the State of Vermont and the State of New Jersey with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii), dismiss the official capacity claims against Defendants Mitchell and Leone, and transfer the remaining claims in the case against Defendants Excelsior College and Pound to the Northern District of New York since venue for those claims is not appropriate in this District.

         I. FACTS

         Jolly's handwritten Complaint is not entirely clear. She alleges that she is a professional nurse and teacher. On or about March 2018, she applied for “RN-NCLex by examination.” (ECF No. 2 at page 5.) She asserts that “Vermont did not accept transcripts and violated their [sic] own admin rules. Conspired & N.J. Board & Excelsior College.” (Id.) She further asserts that the “NJ Board published and punished Ms. Jolly 5/6 months after licensure return, in what is believed on behalf of Excelsior College. . . . [Excelsior's] Mary Lee Pound publish sensitive client-attorney info.” (Id. at 5-6.) She claims that Pound defamed her “secondary to class-action lawsuit, ”[2] “released personal documentation for publishing on world wide web, ” “falsified record to include documents for Excelsior 6 mo. after [undecipherable] return, ” and “defamed Ms. Jolly telling boards, [undecipherable] letters misrep-[undecipherable].” The Court interprets these allegations to mean that Pound retaliated against Jolly's filing a class action against Excelsior College by conspiring with others to interfere with her ability to attain a nursing license in either Vermont or New Jersey.

         Jolly's typed Complaint is far lengthier, but also difficult to understand. Jolly alleges that the Vermont Board of Nursing offers an “alternative program” for nurses and nursing assistants to gain licensure through an online application by examination. (Id. at 25.) She attempted to use this process but apparently some damaging information was released to or by the New Jersey Board of Nursing. (Id. at 28.) She claims she satisfied Vermont's requirements. (Id. at 29.) She appears to claim that Vermont failed to follow its own regulations regarding licensure under the program. (Id. at 30.)

         Jolly also alleges that the University of Vermont partnered with Excelsior College to allow for transfer of credits and other benefits. However, she claims that Excelsior has acknowledged that its graduates will not be able to sit for the nursing examination in Vermont because Vermont requires 400 clinical hours while Excelsior offers only a two and one-half day hospital visit. (Id. at 31.)

         Jolly asserts that New Jersey conducted an internal investigation of her license in July 2018. (Id. at 33.) She appears to assert that Pound was improperly involved in his investigation, leading to findings against her by New Jersey of misrepresentation, fraud and deceit. (Id.) She also alleges that attorney-client privileged information was disclosed by New Jersey. (Id. at 34.) She contends that the Vermont Board of Nursing, Excelsior College and New Jersey conspired to destroy, malign and irrevocable harm her. (Id.) She asserts claims for violation of the Privacy Rights Act, Public Records Act, and the disclosure of personal information (Claim I), violation of 18 U.S.C. § 242 (Claim II), conspiracy (Claim III), violation of Title VII (Claims IV and VI), and violation of attorney-client privilege (Claim V). She requests as relief that the Court “Declare that Section 2(a) of the Act violates the First and Fourteenth Amendments, ”[3] enjoin Defendants from “encroaching, invading or releasing documents, ”[4] and award compensatory damages of $1 million, punitive damages of $6 million, and costs and attorney fees. (Id. at 64.)


         Because Jolly appears to be unable to pay the filing fee for this matter, the Court grants her leave to proceed in forma pauperis. Accordingly, 28 U.S.C. § 1915(e)(2)(B)(i) and (ii) apply, requiring the Court to dismiss the Complaint if it is frivolous or fails to state a claim. A complaint is frivolous if it “lacks an arguable basis either in law or in fact, ” Neitzke v. Williams, 490 U.S. 319, 325 (1989), and is legally baseless if it is “based on an indisputably meritless legal theory.” Deutsch v. United States, 67 F.3d 1080, 1085 (3d Cir. 1995). Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which requires the Court to determine whether the complaint contains “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). Conclusory allegations do not suffice. Id. As Jolly is proceeding pro se, the Court construes her allegations liberally. Higgs v. Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).


         A. Claims Against Vermont, New Jersey, and the Official Capacity Claims Against the Vermont and New Jersey Officials \

         The claims for money damages Jolly seeks to assert against the State of Vermont, the State of New Jersey, their agencies, and their officials in their official capacities, may not proceed. The Eleventh Amendment bars suits against a state and its agencies in federal court that seek monetary damages. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99-100 (1984); A.W. v. Jersey City Public Schs., 341 F.3d 234, 238 (3d Cir. 2003). Suits against state officials acting in their official capacities are really suits against the employing government agency, and as such, are also barred by the Eleventh Amendment. A.W., 341 F.3d at 238; see also Hafer v. Melo, 502 U.S. 21, 25 (1991); Will v. Mich. Dep't of State Police, 491 U.S. 58, 70-71 (1989). As neither the State of New Jersey nor the State of Vermont has waived its Eleventh Amendment immunity for lawsuits filed in federal court, both States, their departments, as well as their officials sued in their official capacities, are immune from suits filed in federal court. See, e.g., Mierzwa v. United States, 282 Fed.Appx. 973, 976 (3d Cir. 2008) (citing Ritchie v. Cahall, 386 F.Supp. 1207, 1209-10 (D.N.J. 1974) for the proposition that New Jersey did not waive its immunity from suit in federal court by enacting the New Jersey Tort Claims Act); see 12 V.S.A. § 5601(g) (Vermont Tort Claims Act reserves Eleventh Amendment immunity for all claims not specifically waived).

         B.Venue for Jolly's Remaining Claims

         Venue in this District does not lie over Jolly's remaining claims. 28 U.S.C. § 1391(b) defines where venue is proper, ...

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