Second Posting From ACLU Site
November 13, 2003
American Civil Liberties Union
Greater Pittsburgh Chapter
313 Atwood Street
Pittsburgh, PA 15213
RE: YOUR REQUEST TODAY
Dear Mr. Walczak:
Brief Summary of the Facts :
1. This case involves a "transfer student" and a "for-profit" online
law school's alleged denial of an October 2000 start, because of race
(African American). That is, the plaintiff contends the Director of
Enrollment advised him on several occasions that the Administration
had "changed their mind" about his admission because his race "wasn't
the preferred demographic they envisioned as being included with the
first group of graduates."
2. Plaintiff did start in January 2001, but claims he was systemically
isolated, excluded and intentionally denied important features of the
online law study program, and denied any direct involvement with the
first group of graduates.
(A) In particular, denied the signature aspect of the online law
school "Professor-led" group chats for the only 3rd year course the
school said was available in 2001. Plaintiff contends that the chats
wasn't held because the other 3rd year students were "absentee"
students and really not participating with the online program.
(B) Plaintiff contends that he also wasn't invite to the fourth-year
planning sessions the school held for the upper-level student in
(C) Wasn't provided the advertised "student roster" the online law
school says facilitates a highly interactive online campus. Plaintiff
contends that the student roster was denied because the other 3rd year
students were "absentee" students. Plaintiff also contends that the
school advertised 600 to 1000 actively participating students but he
only witnessed no more than 25 to 50 first and second year students.
3. Plaintiff alleges that he complained throughout 2001 about unequal
4. On January 5, 2002, plaintiff posted an inquiry on the
"Student-to-Student Only" bulletin board, seeking information to prove
his belief of racial discrimination.
5. On January 6, 2002, a non black student, (STUDENT'S NAME REMOVED),
answered the plaintiff's posting with a reply specifically identifying
an unequal learning environment.
6. Immediately, on January 6, 2002, plaintiff supplemented his
complaint, adding the newly discovered (STUDENT'S NAME REMOVED)
7. As had been a pattern of the for-profit law school, on January 7,
2002, in retaliation, they suspended the plaintiff's access to the
8. Plaintiff thereafter requested assistance from the Tech department,
and his certificates were corrected to allow access.
9. Plaintiff then posted a "second" inquiry on the "Student to Student
Only" bulletin board questioning the administration's failure to
forward his final exam results and overall course grades, failure to
provide registration information for the 2002 academic year that had
already started, and the like.
10. The for-profit law school, immediately, again in retaliation,
suspended the plaintiff's access to the online campus. This time
plaintiff received an error message that his account was no longer
active and the Tech department advised that the administration was
only allowed to correct a non active status.
11. On January 9, 2002, plaintiff attempted again to access the online
campus, this time plaintiff received an error message that the account
12. Other students contacted the plaintiff and advised him that all of
his posting had been removed and such was anomalous because posting of
former students were still listed.
13. On January 11, 2002, defendant Cassandra Colchagoff, Associate
Dean, wrote plainly and clearly language substantiating a retaliatory
motive to explain a 12 month suspension:
"After our first contact, you placed several postings to the Student
Discussion Boards that question whether there are, in fact, other
upper level students at Concord and course curriculum. You also stated
that Concord had failed to provide you with your course and final exam
grades, when that was untrue. Most glaringly, you disrpted students
engaged in their studies in the Concord Chat Rooms with messages
stating ‘Important Message – Concord is a Sham' suggesting that
Concord's FYLSE results were inaccurate and that there were no upper
level students. These clearly go to your allegations to me that we
were engaged in fraud and misrepresentation of the school and, in
fact, had fabricated our third and fourth year students."
14. On January 17, 2002, defendant Cassandra Colchagoff, Associate
Dean, wrote the plaintiff and advised the following in response to his
email dated January 11, 2002 and subsequent communications:
"If you choose to seek readmission to Concord following the expiration
of your suspension, you must do so in writing to the Dean. Readmission
to the school is at the discretion of the Dean. Your request should
include a statement that you understand the nature and severity of the
actions that led to your suspension and what actions you will take to
avoid further violations. You may included whatever other relevant
statements you feel are appropriate. Your application for readmission
will be considered in light of your entire academic record."
15. On January 17, 2003, plaintiff filed a formal grievance with the
Defendants providing, among other:
"It appears that your most recent action demonstrates further
retaliation. You have disciplined me for discussions that you alleged
without providing names, the times of any alleged discussion, etc. You
asked me to respond to things that are vague and not specifically
stated. Further, you have disciplined me despite knowing that you had
blocked all of my communications on a day and time prior to the
alleged conduct. You are well aware of such because I emailed you
immediately following each time the school violated my first amendment
16. No hearing was provided and the for-profit online law school
failed to provided any Title VI procedure to redress the plaintiff's
17. In 2003, the for-profit online law school has knowingly refused to
comply with the stated readmission procedure. That is, refused to
communicate any responsible reply to the plaintiff's various "Petition
for Reinstatement" and/or his many "Request for Due Diligence."
18. In short, this case involves a retaliatory 12 months suspension in
plain and clear violation of rights protected by the United States
Constitution, Amendments I and XIV and the Pennsylvania Constitution
Article 1 and 7. Flaherty v. Keystone Oaks School District, 247 F.
Supp. 2d 698 (W.D. Pa. 2003). See also: Killion v. Franklin Regional,
136 F. Supp. 2d 446 (W.D. Pa. 2001).
19. The loss of First Amendment freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury. See Elrod v.
Burns, 427 U.S. 347, 373, 49 L.Ed. 2d 547 (1976). Abu-Jamal v. Price,
154 F.3d 128, 136 (3r Cir. 1998).
See also: Goss v. Lopez, 419 U.S. 565, 579 (Due Process and Liberty
Hearing Requirement); and, General building Contractors Assn. Inc. V.
Pennsylvania, 458 U.S. 375, 389-390 (1982) (Conduct that violates the
Equal Protection Clause of the Fourteenth Amendment also violates
See: Alexander v. Sandoval, 532 U.S. 275, 281 (2001); United States v.
Fordice, 505 U.S. 717, 732, n. 7 (1992); and, Alexander v. Choate, 469
U.S. 287, 293 (1985) discrimination that violates the Equal Protection
Clause of the Fourteenth Amendment committed by an institution that
accepts federal funds also constitutes a violation of Title VI.
20. Defendants have intentionally obstructed and delayed any legal
redress since January 2002.
21. Plaintiff has been denied, for 23 months, among other, First
Amendment Protections, "due process" and a "liberty" interest in his
"good name," rights guaranteed by Title VI, and rights guaranteed by
the Equal Protection Clause of the Fourteenth Amendment and Section
1981. The suspension has placed his ability to comply with the "study
plan" approved by the State Bar of California that mandates no
interruption of legal studies.
22. Defendant(s) at all times was an institution receiving federal
assistance from the U.S. Department of Education subject to Title VI
of the Civil Rights Act of 1964. Title VI provides: "no person in the
United States shall, on the ground of race, color, or national origin,
be excluded from participation in, be denied the benefits of, or
subjected to discrimination under any program or activity receiving
federal financial assistance." 42 USC section 2000d.
23. A student may bring a contract action to enforce the specific
promises made by his university. Britt v. Chestnut Hill Collage, 429
Pa. Super. 263, 632 A.2d 557 (1993); Cavaliere v. Duff's Business
Inst., 413 Super. 357, 605 A.2d 397 (1992); Paladino V. Adelphis
Univ., 89 A.D.2d 85, 454 N.Y.S.2d 868, 873 (1992); Wickstrom v. North
Idaho Collage, 111 idaho 450, 725 P/2d 155, 157 (1986); Behrend v.
Ohio App., 2d 155 (1986); Behrend v. Ohio App., 55 Ohio App. 2d 135,
379 N.E. 617, 620 (Ohio App. 2d 1977).
24. A student may also bring an interference with contract action in
Pennsylvania if plaintiff and defendants were contractually bound at
the time of the alleged tort. Atlantic paper Box, Co. V. Whitman'S
Chocolates, 844 F. Supp. 1038, 1047 (E.D. Pa. 1994).
II. Plaintiff's attempts to serve the summons and complaint:
1. On November 10, 2003, Jonathan Grayer, Chairman and CEO, Kaplan
Inc., 888 Seventh Avenue, New York, NY 10106, was additionally served
individual copies of the complaint and summons (issued by Robert
Barth, Clerk Western District Pennsylvania).
2. Rule 4 of Federal Rules of Civil Procedure requires certain parties
to cooperate in saving unnecessary costs and service of the summons
and complaint. That is, Plaintiff additionally served the defendants
by overnights mail on September 30, 2003 and the Kaplan Higher
Education local campus (ICM School of Business)
3. On September 22, 2003, plaintiff served the defendants individual
copies of a Notice of Lawsuit and Request for Waiver of Service of
Summon, and the Wavier of Summons Form.
4. The defendants, all located in the United States, despite being
notified of the pending action by a plaintiff asking for a wavier of
service of the summons, failed to cooperate in saving unnecessary
costs of service of the summons.
5. Plaintiff contends: if a defect in process is found, Rule 4(h) does
not require that the party be served anew as if the first service of
process did not exist.
(A) The date the action was commenced, however, relates back to the
date the first process was served (September 30, 2003); and
(B) The rules clearly contemplate that the court may have personal
jurisdiction over a defendant served with imperfect process, corrected
vis-a-vis service of a second summons (October 15, 2003). Sanderford
v. Prudential Ins. Co., 902 F.2d 897; 1990 U.S. App. LEXIS 8908; 16
Fed. R. Serv. 3d (Callaghan) 1381.
6. Further, plaintiff contends the insufficiency of process defense is
waiveable. The rules provide for mandatory waiver of the defense of
insufficiency of process if not included in a defense motion or
responsive pleading. Fed. R. Civ. P. 12(h). According to the Court
Docket a defense motion and/or responsive pleading required by
November 4, 2003.
7. Fed. R. Civ. P. 4 "Is a flexible Rule that should be liberally
construed so long as a party receives sufficient notice of the
complaint." United Food & Commercial Workers Union v. Alpha Beta Co.,
736 F.2d 1371, 1382 (9th cir. 1984), citing, FTC v. Compagine de
Saint-Gobain-Pont-A-Mousson, 205 U.S. App. D.C. 172, 636 F.2d 1300,
1312 & n. 61 (D.C. Cir. 1980); 4C. Wright & A. Miller, Federal
Practice & Procedure: Civil Section 1083, at 332-33 (1969)
[Hereinafter]; 4A Federal Practice Section 1083, at 10.
8. "The Federal Rules do not contemplate that a party may simply
ignore pleadings it receives. That is, neither the text of the Federal
Rules, nor judicial interpretation placed in the rules by the Federal
Courts contemplate that a party may totally ignore pleadings and
notices it receives in an unfounded assurance that a technical
omission absolves him or her or it from responding Here, emphasis
added as a result of the requested emergency injunctive relief. Billy
v. Ashland Oil, Inc., 102 F.R.D. 230, 234, (W.D. Pa. 1984); See
Commercial Casualty Ins. Co. V. Consolidated Stone Co., 278 U.S. 177,
180, 49 S.Ct. 98. 99. (1929). See both Plaintiff's Motion to Compel
and Motion for Restraining Order.
9. Fed. R. Civ. P 55 (a), provides that the Court may enter default
judgment "when a party against whom a judgment for affirmative relief
is sought has failed to plead or otherwise defend as provided by these
rules." See October 15, 2003, Court Docket entry : "Answer Due
November 4, 2003."
III. Temporary Restraining Order (Denied Nov. 7, 2003) and November 7,
2003, Order of Court Unconstitutionally Denies the Plaintiff access to
the courts (Requires and IFP litigant to pay U.S. Marshal fees and
1. David Stewart Cercone, United States District Judge, wrote on
November 7, 2003, the following Order of Court:
"AND NOW this 7th day of November, 2003, upon due consideration of pro
se plaintiff's motion to compel (Doc. No. 15), IT IS ORDERED that the
motion be, and the same hereby is, denied. The record lacks any
indication that the ICM School of Business & Medical Careers is a
registered agent for service of process for any of the corporate
defendants. In addition, the record unequivocally reveals that the
individual defendants have not been served by hand delivery at their
places of residence. Finally, Federal Rule of Civil Procedure 4 does
not authorize service by mail under any circumstances applicable to
IT FURTHER IS ORDERED that upon due consideration of pro se
plaintiff's motion for a temporary restraining order (Doc. No. 17), IT
IS ORDERED that the motion be, and the same hereby is, denied; and
IT FURTHER IS ORDERED that upon consideration of pro se plaintiff's
motion for new summons and marshall service (Doc. No. 16), the motion
be, and the same hereby is, granted in part, provided plaintiff (1)
supplies the Clerk of Courts with valid and accurate addresses
reflecting the principal place of business for each corporate entity
or its registered agent for service of process within the state of its
principal place of business, as appropriate; and to the extent
plaintiff seeks to sue named individual in his or her individual
capacity, the address of the residence of each individual defendant;
and (2) provides to the Marshal prior to service of the summons any
fees and costs requested by the united States marshall Service. To the
extent plaintiff seeks to have defendants bear the costs of such
service, the motion is denied without prejudice to renew following the
completion of proper service. A determination of whether the
reimbursement of costs is appropriate under 4(d)(2) will not be made
by the court until (A) the respective defendant has been properly
served with the complaint, (B) the respective defendant has enter an
appearance in this action and (C) plaintiff thereafter proffers
sufficient proof of his compliance with all requirements of Rule 4(d)
with regard to the particular defendant."
2. Plaintiff has In Forma Pauperis status.
IV. Unexplained Lost of Mailed Pleadings and/or Unexplained Delay
Docketing of Mailed Pleading (Similar to previous "Bobo Cross
case-fixing" activities involving the Allegheny County Court of Common
Pleas that had specifically targeted the plaintiff)
1. On October 26, 2003, by mail plaintiff filed a Rule 65(b) Motion
for Temporary Restraining Order seeking, among other, immediate relief
to facilitate reinstatement (for an October 2003 start). Although the
Judge's chamber's acknowledged that it received its copy, the pleading
for unexplained reasons wasn't docketed and the Clerk's office later
claimed it wasn't received. Therefore such was filed by hand delivery
on October 28, 2003.
2. On November 5, 2003, (Name Removed) signed a U.S. Mail Return
Receipt, 7003 2260 0003 3717 9172. However, for a second time a
pleading wasn't processed by the Office of the Clerk for the Western
District of Pennsylvania. That is the pleading (Second Motion for
Default Judgment and Restraining Order) wasn't docketed and the mail
for unexplained reasons disappeared. Therefore such was filed by hand
delivery on November 6, 2003.
3. It appears that someone is attempting to frustrate (deny) the
plaintiff's access to the courts, by destroying his mail (pleadings).
See also the November 7, 2003, Order of Court mandating payment of
U.S. Marshal fees and costs.
4. Plaintiff has filed a formal complaint with the local Duty Agent of
the FBI and the Chief Judge of the Western District Pennsylvania,
Donette W. Ambrose. (Please Note, The Chief Judge Donette Ambrose
sentenced Bobo Cross to federal prison for fixing cases against me).
V. Please Note Unexplained Delay Department of Education
1. Lastly, for unexplained reasons my May 30, 2002, complaint filed
with the United States Department of Education Office of Civil Right
San Francisco Office was subsequently transferred to the Seattle
Washington Office for investigation.
2. The OCR Case File 09022116 contains information substantiating that
the San Francisco Office had made an early determination that a named
Respondent, Kaplan, Inc. at all times was an institution receiving
federal assistance from the U.S. Department of Education subject to
Title VI of the Civil Rights Act of 1964.
3. However, the Seattle Office OCR immediately closed the case citing
a lack of jurisdiction.
4. Plaintiff was therefore forced to complain from June 2002 until
February 2003, to get the Seattle OCR Office to investigate.
5. On February 25, 2003, in an apparent attempt to further help
Kaplan, Inc., the Seattle Office issued a notice of allegations
letter, but excluded the majority of the discrimination allegations,
including the January 17, 2002, retaliatory suspension.
6. On October 10, 2003, Gary Jackson, Director, Seattle OCR Office,
justified his office failure to investigate the majority of the
allegations, including the January 17, 2002, suspension, as follows:
"In our letter we pointed out that, since your complaint was received
on May 30, 2002, the 180-day period over which OCR had jurisdiction to
take action began on December 1, 2001. Therefore, we did not accept
for resolution any allegations based on actions that occurred before
December 1, 2001."
7. Interesting, plaintiff had pointed out since June 2002, the January
17, 2002, retaliatory suspension is plain and clear within the 180-day
period that began on December 1, 2001, as were the majority of the