Durrenberger v. Florida International University Board of Trustees et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 25-cv-25316-DPG
ERIC PHILLIP DURRENBERGER,
Plaintiff, pro se,
vs.
FLORIDA INTERNATIONAL UNIVERSITY
BOARD OF TRUSTEES, et al.,
Defendants.
__________________________________/
ORDER GRANTING MOTION FOR LEAVE TO PROCEED
IN FORMA PAUPERIS AND REPORT AND RECOMMENDATION DISMISSING
COMPLAINT
THIS CAUSE is before Eric Phillip Durrenberger’s (“Plaintiff” or “Durrenberger”)
Motion for Leave to Proceed in forma pauperis (the “IFP Motion”). [ECF No. 3]. The Motion was
referred to the undersigned by the Honorable Darrin P. Gayles. See [ECF No. 10]. For the reasons
set forth below, it is ORDERED that Plaintiff’s IFP Motion [ECF No. 3] be GRANTED. It is
FURTHER RECOMMENDED that Plaintiff’s Complaint [ECF No. 1] be DISMISSED
WITHOUT PREJUDICE.
BACKGROUND
Plaintiff commenced the instant action on November 14, 2025, with the filing of his two-
count Complaint. See [ECF No. 1 at 1]. Plaintiff was previously enrolled in a graduate social work
program at Florida International University (“FIU”). See [id. at 6]. According to Plaintiff, on
March 11, 2025, he presented his final project for his graduate program. See [id.]. Thereafter on
March 15, 2025, he received an email from Defendant Director Mary Helen Hayden that he had
failed his final evaluation. See [id.]. Five days later, Director Hayden informed Plaintiff that she
adjusted his score to a passing grade without requiring revisions to his work. See [id.]. Plaintiff
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further alleged that between March 15 and April 2, 2025, he emailed three separate complaints to
Director Hayden, Associate Director Jennifer Abeloff, and Instructor Nicole Neufeld, alleging that
Hayden had discriminated against him during the final evaluation. See [id.]. He does not identify
the basis for the alleged discrimination. See [id.].
On April 2, 2025, Plaintiff emailed “four grievances” to Instructor Neufeld, identifying the
same alleged discrimination and referencing a rumor that he intended to “shoot up the school.” See
[id.]. Instructor Neufeld emailed back thanking him for sharing his thoughts. See [id.]. The next
day, on April 3, 2025, armed police officers were present outside Plaintiff’s classroom. See [id.].
On April 7, 2025, Associate Director Abeloff notified Plaintiff that he was required to attend a
meeting to determine whether to expel him from the program. See [id.]. Plaintiff alleges he was
told that he could not bring an attorney and that he was prohibited from raising discrimination or
retaliation issues in the meeting. See [id.]. Plaintiff also stated that Associate Director Abeloff’s
email included allegations of sexual harassment, but he provides no more detail as to the
allegations. See [id.]. On April 9, 2025, Director Hayden expelled Plaintiff from the graduate
program. See [id.]. Plaintiff now brings claims against Defendants for a violation of Title IX of the
Education Amendments of 1972 and 42 U.S.C. § 1983. See [id. at 1-3].
LEGAL STANDARD
Under 28 U.S.C. § 1915, a litigant may seek to commence a civil action without
prepayment of fees by submitting an affidavit which demonstrates that the person is unable to pay
such fees. 28 U.S.C. § 1915(a)(1). Furthermore, the statute requires a federal court to dismiss a
plaintiff’s suit if the court determines that: (A) the allegation of poverty is untrue; or (B) the action
or appeal (i) is frivolous or malicious or (ii) fails to state a claim on which relief may be granted.
28 U.S.C. § 1915(e)(2) (emphasis added). This screening process applies equally to non-prisoner
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pro se plaintiffs. Fletcher v. President of Albert Einstein Med. Ctr., No. 15-24355-CIV, 2016 WL
11547296, at *1 (S.D. Fla. Feb. 10, 2016), report and recommendation approved, No. 15-24355-
CIV, 2016 WL 11547297 (S.D. Fla. Apr. 5, 2016) (citing Boyington v. Geo Grp., Inc., No. 2:09-
cv-570-FtM-29SPC, 2009 WL 3157642 *1 (M.D. Fla. 2009) (in turn citing Troville v. Venz, 303
F.3d 1256, 1260 (11th Cir. 2002) (holding that 28 U.S.C. § 1915 dismissals apply to non-prisoners,
even if fee assessment provisions do not)).
Our courts are more lenient to pro se filings than those drafted by practicing attorneys.
Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168 (11th Cir. 2014) (citing Haines v. Kerner, 404
U.S. 519, 520 (1972)). But neither the court nor its staff can serve as “de facto counsel for a party,
or to rewrite an otherwise deficient pleading in order to sustain an action.” Campbell, 760 F.3d at
1168 (citation and quotation marks omitted). Ultimately, “proceeding in forma pauperis is a
privilege, not a right.” Emrit v. Saint Thomas Univ. Sch. of L., No. 22-CV-20835, 2022 WL
874089, at *2 (S.D. Fla. Mar. 24, 2022) (internal citation and quotation marks omitted).
To state a claim for relief, a complaint must contain: “(1) a short and plain statement of the
grounds for the court’s jurisdiction . . . ; (2) a short and plain statement of the claim showing that
the pleader is entitled to relief; and (3) a demand for the relief sought[.]” Fed. R. Civ. P. 8(a). “A
party must state its claims or defenses in numbered paragraphs, each limited as far as practicable
to a single set of circumstances.” Fed. R. Civ. P. 10(b). Further, “a complaint must contain
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). Facial plausibility requires the plaintiff to plead
“factual content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Id.
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DISCUSSION
1. 	Plaintiff’s Motion for IFP.
Section 1915 of United States Code Title 28 provides that a court may authorize a person
who is unable to pay court fees to proceed in his action so long as he is unable to pay such fees or
give security therefore. See 28 U.S.C. § 1915(a)(1); see also Martinez v. Kristi Kleaners, Inc., 364
F.3d 1305, 1306 n.1 (11th Cir. 2004) (explaining that § 1915(a)(1) applies to all persons requesting
leave to proceed IFP).
The affidavit in support of Plaintiff’s Amended Motion for Leave to Proceed IFP, [ECF
No. 3], indicates that Plaintiff is unable to pay the filing fee or to incur the costs of this action.
Indeed, Plaintiff’s average monthly income of $750, and upcoming expected monthly income of
$2,000 is less than his average monthly expenses of $2,507. See [ECF No. 3 at 1–4]. Plaintiff
further claims credit card debt of around $1,600. See [id.]. Thus, the requirements of 28 U.S.C.
§ 1915(a)(1) are satisfied, and Plaintiff’s IFP Motion, [ECF No. 3], is GRANTED
2. 	Plaintiff’s Complaint.
Notwithstanding the issue of any filing fee, Plaintiff’s complaint has failed to state a claim
for relief and, therefore, should be dismissed under 28 U.S.C. § 1915(e)(2). A Complaint must
plead enough facts to state the basis for each alleged claim. See Vignoli v. Clifton Apartments, Inc.,
930 F. Supp. 2d 1342, 1345 (S.D. Fla. 2013). The requisite factual predicate must be more than
“labels and conclusions, and a formulaic recitation of a cause of action’s elements.” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 545 (2007).
Though unclear, it appears that Plaintiff is asserting a retaliation claim under Title IX of
the Education Amendments of 1972 pursuant to 20 U.S.C. § 1681(a) and a violation of 42 U.S.C.
§ 1983. See [ECF No. 1 at 3]. However, the Complaint lacks factual predicate to allow the Court,
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and Defendants, to understand the nature of the claim being asserted. See Collins v. City of Miami
Beach, No. 21-24489-CIV, 2022 WL 1749895, at *3 (S.D. Fla. Apr. 27, 2022), report and
recommendation adopted, No. 21-24489-CIV, 2022 WL 1746801 (S.D. Fla. May 31, 2022) (“The
purpose of the Complaint is to clearly inform the Court and Defendants of the legal claims being
asserted and the facts that support those claims.”); Brogan v. United States, No. 23-22861-CIV,
2024 WL 3462649, at *2 (S.D. Fla. June 26, 2024) (dismissing pro se complaint that violated Rule
10(b) and failed to allege sufficient facts to state a plausible claim).
For example, a retaliation claim under Title IX must show (1) that Plaintiff engaged in
statutorily protected expression; (2) that he suffered an adverse action; and (3) that there is some
causal relation between the two events. See Kocsis v. Fla. State Univ. Bd. of Trs., 788 F. App’x
680, 686 (11th Cir. 2019). Plaintiff fails to meet the first element because he does not clearly
identify what statutorily protected speech he allegedly engaged in. See [ECF No. 1 at 6]. Instead,
Plaintiff vaguely alleges that he made three complaints to FIU faculty stating that he “believed
discrimination had occurred during [his] Final Evaluation,” and that he later emailed four
grievances, including a report of the alleged discrimination, to Instructor Neufeld. See [id.].
Plaintiff does not state what the alleged discrimination was, what formed the basis for his
complaints/grievances, nor any detail for the Court to properly evaluate whether he participated in
statutorily protected expression. The lack of factual allegations in the Complaint similarly stops
the Court from evaluating whether Plaintiff suffered a subsequent adverse action and any causal
relation to alleged protected speech. See [id.]; see also Mulloney v. Polk Cnty. Bd. of Cnty.
Commissioners, No. 8:17-CV-2573-T-36TGW, 2018 WL 11485769, at *7–8 (M.D. Fla. Sept. 10,
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2018) (dismissing Title VII retaliation claim for being “largely conclusory.”).1
Plaintiff’s claim pursuant to 42 U.S.C. § 1983 suffers from the same deficiencies. A
successful § 1983 claim requires a showing that the conduct complained of (1) was committed by
a person acting under color of law and (2) deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. See Harvey v. Harvey, 949
F.2d 1127, 1130 (11th Cir. 1992). Here, Plaintiff fulfils neither of these elements. Namely, Plaintiff
does not sufficiently detail what constitutional right, privilege, or immunity was violated by
Defendants’ handling of his claim, nor again, what discrimination allegedly occurred. See Taylor
v. Fla. Highway Safety, 816 F. App’x 372, 374 (11th Cir. 2020) (finding that conclusory allegations
against two individuals employed by the State of Florida are insufficient for § 1983 claim because
“they do not demonstrate the two individuals deprived [plaintiff] of a federal right while operating
under color of law.”). Rather, he vaguely alludes to discriminatory conduct without any factual
detail. See [ECF No. 1 at 1–6]; see also Medina v. Minerva, 907 F. Supp. 379, 382 (M.D. Fla.
1995) (“It is well-established that such conclusory allegations are insufficient to state a § 1983
claim for relief.”) (citing Fullman v. Graddick, 739 F.3d 553, 556–57 (11th Cir. 1984)).
CONCLUSION
THEREFORE, it is ORDERED that Plaintiff Eric Phillip Durrenberger’s Motion for Leave
to Proceed in forma pauperis [ECF No. 3] is GRANTED. It is further RECOMMENDED that
Plaintiff’s Complaint [ECF No. 1] be DISMISSED WITHOUT PREJUDICE for its failure to
state a claim.
1 “Retaliation claims under Title IX are analyzed under the framework for claims under Title VII
of the Civil Rights Act of 1964[.]” Kocsis, 788 F. App’x at 686.
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Objections to this Report may be filed with the District Judge within fourteen (14) days of
receipt of a copy of the Report. Failure to timely file objections will bar a de novo determination
by the District Judge of anything in this recommendation and shall constitute a waiver of a party’s
“right to challenge on appeal the district court’s order based on unobjected-to factual and legal
conclusions.” 11th Cir. R. 3-1; see also Harrigan v. Metro-Dade Police Dep’t Station #4, 977 F.3d
1185, 1191-92 (11th Cir. 2020); 28 U.S.C. § 636(b)(1)(C).
SIGNED this 12th day of February 2026.
LISETTE M. REID
UNITED STATES MAGISTRATE JUDGE
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