Tripathi v. St. Edward's University

               UNITED STATES DISTRICT COURT                              
                 WESTERN DISTRICT OF TEXAS                               
                       AUSTIN DIVISION                                   

KRISHNA TRIPATHI,              §                                         
Plaintiff                      §                                         
                               §                                         
v.                             §      No.  1:25-CV-01203-RP              
                               §                                         
ST. EDWARD’S UNIVERSITY, et    §                                         
al.,                           §                                         
Defendants                     §                                         


          ORDER AND REPORT AND RECOMMENDATION                            
          OF THE UNITED STATES MAGISTRATE JUDGE                          

TO:  THE HONORABLE ROBERT PITMAN                                          
    UNITED STATES DISTRICT JUDGE                                         

    The undersigned submits this report and recommendation to the United States 
District Judge pursuant to 28 U.S.C. § 636(b) and Rule 1 of Appendix C of the Local 
Court Rules of the United States District Court for the Western District of Texas, 
Local Rules for the Assignment of Duties to United States Magistrate Judges. 
    Before the Court is Plaintiff Krishna Tripathi’s Application to Proceed In 
Forma Pauperis. Dkt. 4. Because Tripathi is requesting permission to proceed in 
forma pauperis, the undersigned must review and make a recommendation on the 
merits of his claims pursuant to 28 U.S.C. § 1915(e).                     
       I.    REQUEST TO PROCEED IN FORMA PAUPERIS                        
    The Court has reviewed Tripathi’s financial affidavit and determined Tripathi 
is indigent and should be granted leave to proceed in forma pauperis. Accordingly, 
the Court hereby GRANTS Tripathi’s request for in forma pauperis status, Dkt. 4. 
The Clerk of the Court shall file the complaint without payment of fees or costs or 
giving security therefor pursuant to 28 U.S.C. § 1915(a). This indigent status is 
granted subject to a later determination that the action should be dismissed if the 

allegation of poverty is untrue or the action is found frivolous or malicious pursuant 
to 28 U.S.C. § 1915(e). Tripathi is further advised that, although he has been granted 
leave to proceed in forma pauperis, a court may, in its discretion, impose costs of court 
at the conclusion of this lawsuit, as in other cases. Moore v. McDonald, 30 F.3d 616, 
621 (5th Cir. 1994).                                                      
    As stated below, the undersigned has made a § 1915(e) review of the claims 
made in this complaint and is recommending Tripathi’s claims be dismissed under 28 

U.S.C. § 1915(e). Therefore, service upon Defendants should be withheld pending the 
District Judge’s review of the recommendations made in this report. If the District 
Judge declines to adopt the recommendations, then service should be issued at that 
time upon Defendants.                                                     
         II.   REVIEW OF THE MERITS OF THE CLAIM                         
    Because Tripathi has been granted leave to proceed in forma pauperis, the 

undersigned  is  required  by  statute  to  review  the  Complaint.  Section  1915(e)(2) 
provides in relevant part that “the court shall dismiss the case at any time if the court 
determines that … the action or appeal (i) is frivolous or malicious; (ii) fails to state 
a claim on which relief may be granted; or (iii) seeks monetary relief against a 
defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2). 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); Siglar v. Hightower, 112 F.3d 191, 193 (5th Cir. 1997). A 
claim lacks an arguable basis in law when it is “based on an indisputably meritless 
legal theory.” Neitzke, 490 U.S. at 327.                                  

    Pro se complaints are liberally construed in favor of the plaintiff. Haines v. 
Kerner, 404 U.S. 519, 520-21 (1972). However, pro se status does not offer a plaintiff 
an “impenetrable shield, for one acting pro se has no license to harass others, clog the 
judicial machinery with meritless litigation, and abuse already overloaded court 
dockets.” Farguson v. MBank Houston N.A., 808 F.2d 358, 359 (5th Cir. 1986). 
    Tripathi brings this lawsuit against Defendants St. Edwards University (“St. 
Edwards”), St. Edwards Police Department (“St. Edwards PD”), and the law firms 

McGinnis Lochridge LLP (“McGinnis”) and Ellwanger Henderson LLP (“Ellwanger”), 
alleging that these entities violated his Fourteenth Amendment rights by engaging 
in a conspiracy to have him removed from the campus of St. Edwards based on his 
alleged violation of a “no-contact directive” prohibiting Tripathi from contacting 
another student. Dkt. 1, at 10-32, 55-60. Tripathi also brings a slew of state-law 
claims against Defendants and references several criminal statutes in his complaint. 

Id. at 39-55, 61-64. The undersigned finds that Tripathi has not stated any non-
frivolous claims for relief and will recommend that the District Judge dismiss his 
case.                                                                     
    Tripathi cannot maintain any of his federal claims against Defendants. As to 
his constitutional claims against Defendants St. Edwards, McGinnis, and Ellwanger, 
Tripathi has failed to sufficiently allege that they were state actors that deprived him 
of his rights while acting under color of law, as required to state a claim under section 
1983. See Cinel v. Connick, 15 F.3d 1338, 1342 (5th Cir. 1994); White v. City of New 
Orleans, 844 F. App’x 719, 721 (5th Cir. 2021). The Supreme Court has approved of 

the treatment of private parties, such as Defendants, as state actors under section 
1983 when: (1) there is a close nexus between the government and the challenged 
conduct; (2) there is a symbiotic relationship between the private party and the 
government entity; (3) the government and private actor are willing participants in 
joint activity; or (4) the private party performs a function that traditionally is within 
the exclusive province of the state. Jackson v. Metro. Edison Co., 419 U.S. 345, 351 
(1974); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175 (1972); Adickes v. S.H. Kress 

& Co., 398 U.S. 144, 152 (1970). A private party may also be deemed a public actor 
when a plaintiff sufficiently alleges that the private “citizen conspired with or acted 
in concert with state actors.” Priester v. Lowndes Cnty., 354 F.3d 420 (5th Cir. 2004), 
cert. denied, 543 U.S. 829 (2004). Only in rare circumstances will a private entity be 
considered a state actor for purposes of section 1983 liability. Gordon v. Neugebauer, 
57 F. Supp. 3d 766, 773 (N.D. Tex. 2014) (citing Harvey v. Harvey, 949 F.2d 1127, 

1130 (11th Cir. 1992)).                                                   
    Here,  Tripathi  does  not  plausibly  allege  that  St.  Edwards,  McGinnis,  or 
Ellwanger, all private parties, satisfy any of the above circumstances under which a 
private party may be considered a state actor. Dkt. 1, at 28-32, 59-60. Tripathi alleges 
that St. Edwards, which “is a private corporation,” may be considered a state actor 
based on “its exercise of police powers through state-sworn officers, coordination with 
federal immigration authorities, and performance of governmental function in SEVIS 
reporting.”  Dkt.  1,  at  6,  17.  Yet  “[c]ourts  have  consistently  found  that  private 
universities … are not state actors,” and the coordination Tripathi alleges between 

St. Edwards and state actors alleged here is insufficient to render St. Edwards a 
public actor. Armbrister v. McFarland, No. 3:18-CV-1211-B-BH, 2018 WL 6004310, 
at *4 (N.D. Tex. Oct. 30, 2018) (collecting cases), report and recommendation adopted, 
2018 WL 5994992 (N.D. Tex. Nov. 15, 2018). Tripathi further alleges that McGinnis 
engaged in state action by communicating with the Attorney General of Texas on 
behalf of St. Edwards regarding “an ongoing ‘criminal investigation.’” Dkt. 1, at 19. 
Yet the act of reporting—even maliciously or based on false information—suspected 

criminal activity does not convert a private party into a state actor for section 1983 
purposes. Dubash v. City of Houston, No. 4:23-CV-3556, 2024 WL 4351351, at *13 
(S.D. Tex. Aug. 26, 2024) (collecting cases), report and recommendation adopted, 2024 
WL 4355196 (S.D. Tex. Sept. 30, 2024).                                    
    Tripathi’s allegations that St. Edwards, McGinnis, and Ellwanger1 engaged in 
a conspiracy to violate his  civil rights are similarly insufficient to render these 

defendants state actors for the purposes of section 1983. To support a conspiracy 
between private and public actors sufficient to hold a private actor liable under 
section 1983, a plaintiff must allege: (1) an agreement between the private and public 


1 Tripathi does not allege any other bases under which the Court might consider Ellwanger 
a public actor. Tripathi’s claims against Ellwanger revolve around Tripathi’s displeasure 
with Ellwanger’s refusal to offer Tripathi legal services after Tripathi expressed suspicion at 
a “family emergency” referenced in Ellwanger’s email response to Tripathi’s initial request 
for services. See Dkt. 1, at 29-32.                                       
defendants  to  commit  an  illegal  act  and  (2)  a  deprivation  of  constitutional 
rights. Id.; see also Avdeef v. Royal Bank of Scotland, P.L.C., 616 F. App’x 665, 676 
(5th Cir. 2015). Allegations that are merely conclusory, without reference to specific 

facts, will not suffice. Priester, 354 F.3d at 423 n.9 (citing Brinkmann v. Johnston, 
793 F.2d 111, 113 (5th Cir. 1986) (per curiam)). Here, Tripathi does not offer specific 
facts evincing the existence of any conspiracy between St. Edwards, McGinnis, and 
Ellwanger to deprive Tripathi of his Fourteenth Amendment rights. See Dkt. 1, at 9-
32, 59-60; Priester, 354 F.3d at 420 (affirming dismissal of section 1983 claim against 
private actor that did not “allege specific facts to show an agreement”); Walzier v. 
McMullen, Civ. A. H-06-2361, 2006 WL 3152137, *5 (S.D. Tex. Nov. 1, 2006) (“To 

establish a § 1983 cause of action based on conspiracy, plaintiff must do more than 
make blanket allegations of conspiracy.”).                                
    Tripathi also alleges that St. Edwards PD violated his Fourteenth Amendment 
rights  when  it  “systemically  denied”  him  “equal  treatment  in  complaint  filing 
procedures” by “providing immediate response to complaints filed against [Tripathi] 
while  refusing  to  process  [Tripathi’s]  harassment  complaints  through  the  same 

formal procedure.” Dkt. 1, at 57. Initially, it is unclear that St. Edwards PD is a 
distinct  jural  entity capable  of being  sued  separately  from  St.  Edwards.  Doe v. 
Bonath, 705 F. Supp. 3d 690, 705 (W.D. Tex. 2023) (dismissing claims against Texas 
Tech Police Department because it “not a jural entity distinct from Texas Tech 
University”). But even if St. Edwards PD were an entity capable of being sued and 
subject to section 1983, Tripathi’s constitutional claims against it would still fail. To 
establish Monell liability under section 1983, a plaintiff must prove three elements: 
“a policymaker; an official policy; and a violation of Constitutional rights whose 
‘moving force’ is the policy or custom.” Piotrowski v. City of Hou., 237 F.3d 567, 578 

(5th Cir. 2001) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978)). “[T]he 
unconstitutional conduct must be directly attributable to the municipality through 
some sort of official action or imprimatur.” Id. In other words, a section 1983 claim 
cannot be predicated on respondeat superior for “isolated unconstitutional actions by 
municipal employees” and instead the alleged unconstitutional conduct must be 
“directly attributable” to an official policy. Id. at 585 n.16 (citing Monell, 436 U.S. at 
692). Here, Tripathi’s claims against St. Edwards PD arise solely from his negative 

experiences filing and being the subject of complaints filed with the department. Dkt. 
1, at 57. He has not identified an official policy promulgated by St. Edward’s PD that 
was  the  cause  of  the  alleged  violations  of  his  rights  under  the  Fourteenth 
Amendment.                                                                
     Having found that Tripathi has failed to state any claims under section 1983, 
his claims for relief brought under section 1985 also fail. Section 1985(3) is purely 

remedial in nature and confers no substantive rights. Great Am. Fed. Sav. & Loan 
Ass’n  v.  Novotny,  442  U.S.  366,  376  (1979);  Mitchell  v.  Tex.  Denton  Cnty.,  No. 
418CV00490ALMCAN, 2021 WL 4497860, at *8 (E.D. Tex. Aug. 13, 2021) (“A claim 
of conspiracy is not actionable without an actual violation of § 1983.”), report and 
recommendation adopted, 2021 WL 4477694 (E.D. Tex. Sept. 29, 2021). Without an 
underlying substantive violation, then, Tripathi’s civil conspiracy claims should also 
be dismissed. Wong v. Stripling, 881 F.2d 200, 203 (5th Cir. 1989).       
    To the extent Tripathi seeks to bring criminal claims against Defendants, 

federal district courts may not order, initiate, or prosecute criminal charges at the 
request of civil rights litigants. McCloud v. Craig, No. 09-3287, 2009 WL 2515609, *2 
(E.D.  La.  Aug.  17,  2009)  (“Federal  courts  are  not  investigative  or  prosecutorial 
agencies. Individuals seeking the criminal investigation or prosecution of alleged 
wrongdoers should  request  the  intervention of the  appropriate  law  enforcement 
authorities, not the federal courts.”); see generally United States v. Nixon, 418 U.S. 
683, 693 (1974) (holding that the executive branch has “exclusive authority and 

absolute discretion to decide whether to prosecute a case”).              
    Having found that Tripathi has failed to state any claims for relief under 
federal law, the undersigned recommends that the District Judge decline to exercise 
supplemental  jurisdiction  over  his  state-law  claims.  Tripathi’s  sole  basis  for 
jurisdiction rests on the assertion of federal causes of action, and under section 1367, 
the Court may decline to exercise supplemental jurisdiction over remaining state-law 

claims where it “has dismissed all claims over which it has original jurisdiction.” 28 
U.S.C. § 1367(c)(3); Noble v. White, 996 F.2d 797, 799 (5th Cir. 1993) (“District courts 
enjoy wide discretion in determining whether to retain supplemental jurisdiction over 
a state claim once all federal claims are dismissed.”); see also Heggemeier v. Caldwell 
Cnty.,  826  F.3d  861,  872  (5th  Cir.  2016)  (“[A]  court  should  decline  to  exercise 
jurisdiction  over  remaining  state-law  claims  when  all  federal-law  claims  are 
eliminated before trial.” (quoting Brookshire Bros. Holding, Inc. v. Dayco Prods., Inc., 
554 F.3d 595, 599 (5th Cir. 2009))).                                      
            III.   ORDER AND RECOMMENDATION                              

    The undersigned hereby GRANTS Tripathi’s Application to Proceed In Forma 
Pauperis. Dkt. 4. The undersigned RECOMMENDS the District Judge DISMISS   
Tripathi’s cause of action with prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) and 
DENY AS MOOT any remaining pending motions.                               
    The referral of this case to the Magistrate Judge should now be canceled. 
                      IV.    WARNINGS                                    
    The parties may file objections to this report and recommendation. A party 

filing  objections  must  specifically  identify  those  findings or  recommendations  to 
which objections are being made. The District Judge need not consider frivolous, 
conclusive, or general objections. See Battle v. United States Parole Comm’n, 834 F.2d 
419, 421 (5th Cir. 1987). A party’s failure to file written objections to the proposed 
findings and recommendations contained in this report within fourteen days after the 
party is served with a copy of the report shall bar that party from de novo review by 

the District Judge of the proposed findings and recommendations in the report and, 
except upon grounds of plain error, shall bar the party from appellate review of 
unobjected-to proposed factual findings and legal conclusions accepted by the District 
Judge. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-53 (1985); 
Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).  
SIGNED August 27, 2025. 

                            DUSTIN M. HOWELL 
                            UNITED STATES MAGISTRATE JUDGE 

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