Zerbst v. University of Phoenix, No. 5:2019cv05058 - Document 10 (D.S.D. 2020)
Court Description: ORDER denying as moot 6 Motion to Electronically File Documents in CM/ECF. ; denying as moot 7 Motion to Withdraw 6 MOTION to Electronically File Documents. Pro se party Dakota Lee Zerbst will now receive electronic notice of unsealed doc uments filed in this case, but must wait for a Court ruling regarding e-filing. Refer to the CM/ECF User Manual located on the cou, 3 MOTION to Appoint Counsel, 2 MOTION for Leave to Proceed in forma pauperis, 7 MOTION to Withdraw 4 Request for Waiver of Service ; granting 2 Motion for Leave to Proceed in forma pauperis; denying 3 Motion to Appoint Counsel. Signed by U.S. District Judge Jeffrey L. Viken on 01/09/2020. (MSB) Mailed order to plaintiff on 01/10/2019.
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Zerbst v. University of Phoenix Doc. 10 UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA WESTERN DIVISION CIV. 19-5058-JLV DAKOTA LEE ZERBST, Plaintiff, ORDER vs. UNIVERSITY OF PHOENIX, Defendant. INTRODUCTION Plaintiff Dakota Lee Zerbst, appearing pro se, brought this action under the False Claims Act-("FCA"), 31 U.S.C. § 3729, against defendant, the University of Phoenix. (Docket 1). Plaintiff moves for leave to proceed informa pauperis. (Docket 2). Also pending before the court are plaintiffs motions to appoint counsel, a motion requesting a CM/ECF account to electronically file documents, and a motion to withdraw his request for waiver of service. (Docket 3,6 85 7). The court grants plaintiff leave to proceed informa pauperis and dismisses the case. 1. In Forma Pauperis Status Section 1915(a)(1) of Title 28 of the United States Code perniits the court to authorize the commencement of a civil action without prepayment of fees , upon proof of plaintiffs inability to pay. 28 U.S.C. § 1915(a)(1). In his declaration, plaintiff indicates he makes approximately $300 per month in Dockets.Justia.com wages and has no savings or other assets. (Docket 2). The court finds plaintiff is indigent within the meaning of§ 1915(a)(1) and gremts him leave to proceed informa pauperis.^ II. Complaint Screening A. Legal standard Because plaintiff is proceeding informa pauperis^ the court must screen his complaint pursuant-to 28 U.S.C. § 1915. That statute provides: Notwithstanding any filing fee, . . . the court shall dismiss the case at any time if the court determines that— (B) the action or appeal— (i) is frivolous or malicious; (ii) fails to -state a claim on which relief may be granted; or I (iii) seeks monetary relief against a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). Subsection (e)(2) allows the court to sua sponte review a complaint filed with an informa pauperis application to determine if the action is frivolous, malicious, fails to state a claim, or seeks monetary relief against a defendant or defendants who are immune from such relief. To survive the screening process, a pro se plaintiff must plead "enough, facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twomblv, 550 U.S. 544, 570 (2007). "[A] complaint must allege 'more than ^Plaintiff informed the court by letter that he is now incarcerated. (Docket 8). Because plaintiff filed this complaint before his incarceration, the court will not treat it as a prisoner complaint. labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.'" Torti v. Hoag, 868 F.3d 666,671 (8th Cir. 2017)(quoting ( Twombly, 550 U.S. at 555). The court does, however,"take the plaintiffs factual allegations as true." Braden v. Wal-Mart Stores. Inc.; 588 F.3d 585, 594 (8th Cir. 2009). The complaint is analyzed "as a whole, not parsed piece by piece to determine whether each allegation, in isolation, is plausible." Braden, 588 F.3d at 594. The court "will not mine a lengthy complaint , searching for nuggets that might refute obvious pleading deficiencies." Neubauer v. FedEx Corp., 849 F.3d 400, 404 (8th Cir. 2017)(quotations omitted). Because plaintiff raises a claim under the FCA, his complaint must comply with the heightened pleading requirements of Federal Rule of Civil Procedure 9(b). United States ex rel. Strubbe v. Crawford Ctv. Memi Hosp., 915 F.3d 1158, 1163 (8th Cir. 2019). To satisfy the particularity requirement of Rule 9(b), the complaint must plead such facts as the time, place, and content of the defendant's false representations, as well as the details of the defendant's fraudulent acts, including when the acts occurred, who engaged in them, and what was obtained as>a result. . . . Put another way, the complaint must identify the "who, what, where, when, and how" of the alleged fraud. United States ex rel. Joshi v. St. Luke's Hosp., Inc., 441 F.3d 552, 556 (8th Cir. 2006)(internal quotations and citations omitted). "While Rule 9(b) is context specific and flexible, a plaintiff cannot meet this burden with conclusory and . generalized allegations." Strubbe, 915 F.3d at 1163 (internal quotation and , citation omitted). In applying these principles, the court must construe plaintiffs pro se complaint liberally. See Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). This means "that if the essence of an allegation is discernible, even though it is not pleaded with legal nicety, then the district court should construe the complaint in a way that permits the layperson's claim to be considered within the proper legal framework." Jackson v. Nixon, 747 F.3d 537, 544 (8th Cir. 2014)(internal quotation marks omitted). The complaint "still must allege sufficient facts to support the claims advanced." Stone, 364 F.3d at 914. B. Analysis Plaintiff alleges defendant fraudulently uses federal education funding by: 1. Pressuring its employees to enroll as students "to fraudulently inflate its graduation 86 job placement statistics[.]" (Docket 1 at p. 3). 2. "[P]urposefully engaging in overpayments" and allowing employees to attend "tuition-free" while representing "to the federal government that they are paying full-tuitionj eausing them to recive [sic] thousands of Dollars in financial aid to which they are not entitled[.]" 3. Falsifying "the loan applications of unqualified students, resulting in dropped students 86 overpaymentsf.]" 4. Being "perpetually 85 . . . continuesly [sic] engaged in fraulant [sic] activity. Id. Plaintiff alleges he is a victim of defendant's fraudulent activities. He asks that he be "absolved of any Financial burden imposed by student lo^s 85 collections," for punitive damages, and for "an injunction suspending all collections arising from the defendant 85 removed from credit history of the plaintiff[.]" Id^ at pp. 3-4. Even giving plaintiffs complaint a liberal construction, it does not satisfy the pleading standards of Rule 9(b). Plaintiff does not identify any specific instance of fraud. He does not explain who perpetuated the alleged fraud, when it occurred, or what exactly was obtained by defendant as a result of the fraud. Plaintiff makes only "conclusory and generalized allegations" that defendant is fraudulently obtaining federal education money. Strubbe, 915 F.3d at 1163 (internal quotation and citation omitted). The complaint is defective uiider Rule 9(b). Accordingly, it does not state a claim for relief and must be dismissed. 28 U.S.C. § 1915(e)(2)(B)(ii). Apart from the pleading deficiency, the court also notes plaintiff may not maintain an FCA claim pro se. See United States v. Onan, 190 F.2d 1, 6(8th Cir. 1951); see also United States ex rel. Mergent Servs. v. Flaherty. 540 F.3d 89, 93-94 (2d Cir. 2008)(collecting modern authority to same effect). The court does not dismiss the case on this basis, but finds it necessary to reiterate this rule because this is plaintiffs second pro se FCA suit. See Zerbst v. Univ. of Phoenix Sch. of Bus, et al.. Civ. 18-5014 (Docket 7)(D.S.D. May 21, 2018); see also Zerbst v. State of South Dakota, Civ. 17-5074 (Docket 7)(D.S.D, Oct. 16, 2017)(dismissing meritless pro se constitutional claim). Given the conclusory nature of plaintiffs complaint and his history of filing meritless pro se actions, the court finds appointing counsel in this case is inappropriate and denies his motion for counsel.^ See Docket 2; also Phillips v. Jasper Ctv. Jail, 437 F.Sd 791, 794 (8th Cir. 2006)(setting forth factors to consider in appointing pro bono civil counsel). Plaintiff is advised that any future FCA claims brought without counsel may be dismissed. ORDER For the reasons given above, it is ORDERED that plaintiffs motion to proceed informa pauperis (Docket 2) is granted. IT IS FURTHER ORDERED that plaintiffs complaint (Docket 1) is dismissed without prejudice. IT IS FURTHER ORDERED that plaintiffs motion to appoint counsel (Docket 3) is denied. IT IS FURTHER ORDERED that plaintiffs motion to electronically file documents (Docket 6) is denied as moot. IT IS FURTHER ORDERED that plaintiffs motion to withdraw request for waiver of service (Docket 7) is denied as moot. Dated January 9, 2020. BY THE COURT: JEFl UNITED STATES DISTRICT JUDGE 2The court also denies the motion to appoint counsel because plaintiff did not attest to any efforts to locate counsel on his own. (Docket 3).
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