United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III, CHIEF UNITED STATES DISTRICT JUDGE
in this sex-discrimination case ask the Court to dismiss
Plaintiff John Doe's Amended Complaint in its entirety.
As detailed below, Defendants' Motion to Dismiss  is
granted as to all claims against all Defendants other than
the Title IX claims against the State Defendants and a
portion of the § 1983 procedural-due-process claim
against Chancellor Vitter in his official capacity.
Facts and Procedural History
case centers around a March 30, 2017 sexual encounter between
Plaintiff John Doe and Jane Roe, both undergraduate students
at the University of Mississippi. Doe and Roe agree that they
had sexual intercourse on March 30. Doe maintains that the
encounter was consensual, but the following day, Roe told the
University's Title IX office that Doe sexually assaulted
initially deciding that she did not want to pursue charges,
in late May 2017, Roe filed a Title IX complaint against Doe.
Defendant Honey Ussery, the University's Title IX
Coordinator, conducted an investigation and submitted a
report to Defendant Tracy Murry, the Director of the
University's Office of Conflict Resolution and Student
Conduct. Murry provided Doe with written notice of the
charges and scheduled a disciplinary hearing before a panel
of the University Judicial Council.
Judicial Council held a hearing on Roe's complaint on
August 24, 2017, and found Doe responsible. As punishment,
the Judicial Council expelled Doe from the University. Doe
appealed, and on October 11, 2017, the Appellate
Consideration Board granted the appeal and remanded the case
to the Judicial Council for reconsideration.
different panel of the Judicial Council held a second hearing
on Roe's complaint on November 17, 2017. At the
conclusion of that hearing, the Judicial Council announced
that it had found Doe responsible and sanctioned him with
suspension through August 2018. Doe and Roe both appealed the
decision, and on December 5, 2017, the Appellate
Consideration Board changed the sanction levied from
suspension to expulsion.
January 26, 2018, Doe filed this lawsuit alleging
discrimination claims under Title IX, due-process claims
under 42 U.S.C. § 1983, and a state-law claim for breach
of contract. He then filed a motion for preliminary
injunction  and subsequently amended his complaint. The
Amended Complaint  asserts claims against the State of
Mississippi; the University of Mississippi; the State
Institutions of Higher Learning (“IHL”); the
Board of Trustees of the IHL; the Commissioner and all
members of the Board of Trustees of the IHL in their official
capacities; Jeffrey S. Vitter, in his official capacity as
the Chancellor of the University of Mississippi; and Murry
and Ussery, in their official and individual capacities.
Defendants moved to dismiss under Federal Rule of Civil
Procedure 12(b)(1) and (6), and the matters raised have been
raise Eleventh Amendment immunity as to some claims, thus
questioning the Court's subject-matter jurisdiction under
Rule 12(b)(1). United States v. Tex. Tech. Univ.,
171 F.3d 279, 285 n.9 (5th Cir. 1999). “The party
seeking relief [in federal court] bears the burden of
establishing subject-matter jurisdiction.” Sawyer
v. Wright, 471 Fed.Appx. 260, 261 (5th Cir. 2012).
“Lack of subject matter jurisdiction may be found in
any one of three instances: (1) the complaint alone; (2) the
complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts
plus the court's resolution of disputed facts.”
Ramming v. United States, 281 F.3d 158, 161 (5th
also challenge the sufficiency of Doe's pleading under
Rule 12(b)(6). When considering a motion under that rule, the
“court accepts ‘all well-pleaded facts as true,
viewing them in the light most favorable to the
plaintiff.'” Martin K. Eby Constr. Co. v. Dall.
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004)
(quoting Jones v. Greninger, 188 F.3d 322, 324 (5th
Cir. 1999) (per curiam)). But “the tenet that a court
must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions. Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)). To overcome a Rule 12(b)(6) motion, a plaintiff must
plead “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at
570. “Factual allegations must be enough to raise a
right to relief above the speculative level, on the
assumption that all the allegations in the complaint are true
(even if doubtful in fact).” Id. at 555
(citations and footnote omitted).
in considering a motion under Rule 12(b)(6), the Court
“must limit itself to the contents of the pleadings,
including attachments thereto.” Collins v. Morgan
Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000).
An exception to this rule exists for documents that
“are referred to in the plaintiff's complaint and
are central to h[is] claim.” Id. at 499.
Likewise, the Court may consider public records. Davis v.
Bayless, 70 F.3d 367, 372 n.3 (5th Cir. 1995).
case, Defendants have submitted a number of documents in
support of their motion to dismiss. And, in his response, Doe
incorporated additional documents he submitted in support of
his motion for preliminary injunction. The documents the
parties submitted include various publications from the
United States Department of Education, Ussery's
investigative report, transcripts of the two hearings, and
other documents generated as part of the University's
handling of the Title IX complaint against Doe. Some of these
documents would be proper for the jurisdictional issues only.
Others can be considered under both Rule 12(b)(1) and
12(b)(6). The Court concludes that it can rule on the Rule
12(b)(6) motion without converting it under Rule 12(d).
See Fed. R. Civ. P. 12(d) (“If, on a motion
under Rule 12(b)(6) or 12(c), matters outside the pleadings
are presented to and not excluded by the court, the motion
must be treated as one for summary judgment under Rule
Eleventh Amendment Immunity
Eleventh Amendment grants a state immunity from suit in
federal court by citizens of other States and by its own
citizens . . . .” Lapides v. Bd. of Regents of the
Univ. Sys. of Ga., 535 U.S. 613, 616 (2002) (citation
omitted). Immunity also extends to state agencies that are
considered “arms of the state.” Will v. Mich.
Dep't of State Police, 491 U.S. 58, 70 (1989). And
“a suit against a state official in his or her official
capacity is not a suit against the official but rather is a
suit against the official's office.” Id.
at 71. Defendants contend that the Eleventh Amendment bars
Doe's § 1983 and breach-of-contract claims against
the State, the University, IHL, the IHL Board Members and
Commissioner, the Chancellor, and Murry and Ussery in their
Section 1983 Claims
with the § 1983 claims, Doe seems to concede that
“claims for monetary damages against the State
defendants and official capacity defendants” are barred
by the Eleventh Amendment. Pl.'s Mem.  at 12. Because
he offers no defense of his § 1983 claims against the
State, the University, IHL, or the Board of Trustees of the
IHL, Defendants' motion is granted as to those claims.
See Voisin's Oyster House, Inc. v. Guidry, 799
F.2d 183, 186 (5th Cir. 1986) (“The Eleventh Amendment
bars suit against a state entity, as opposed to a state
official, regardless of whether money damages or injunctive
relief is sought.”).
insists, however, that he has asserted appropriate claims for
“declaratory and injunctive relief against the
individual defendants named in their official
capacities” that are “not prohibited by the
Eleventh Amendment.” Pl.'s Mem.  at 12. Doe
thus invokes the Ex parte Young doctrine as to the
§ 1983 official-capacity claims against the Commissioner
and members of the Board of Trustees of the IHL, the
Chancellor, and Murry and Ussery. 209 U.S. 123 (1908).
Ex parte Young, the Supreme Court “created an
exception to Eleventh Amendment immunity for claims for
prospective relief against state officials who have been sued
in their official capacities.” Nelson v. Univ. of
Tex. at Dall., 535 F.3d 318, 320 (5th Cir. 2008). For a
state officer to face liability under Ex parte
Young, that officer must have “some
connection” to the requested relief. Morris v.
Livingston, 739 F.3d 740, 746 (5th Cir. 2014). Thus, a
defendant who “is not in a position to provide the
requested relief” is not a proper party under the
Ex parte Young doctrine. Fairley v.
Stalder, 294 Fed.Appx. 805, 812 (5th Cir. 2008).
seem to acknowledge that Doe's “requests for
reinstatement, expungement, and sealing” of his records
qualify as appropriate prospective relief under Ex parte
Mem.  at 9; see Nelson, 535 F.3d at 324
(“[A] request for reinstatement is sufficient to bring
a claim within the Ex parte Young exception to
Eleventh Amendment immunity, as it is a claim for prospective
relief designed to end a continuing violation of federal
law.”). But Defendants say that “the only state
official with any connection to such claim for relief is the
Chancellor of the University.” Defs.' Mem.  at
9. Doe does not counter this argument, which appears correct.
See El-Bawab v. Jackson State Univ., No.
3:15-CV-733-DPJ-FKB, 2018 WL 543040, at *3 (S.D.Miss. Jan.
24, 2018) (finding former University president was “the
only individual defendant who ever had authority to grant the
prospective relief” plaintiff sought-“an
immediate promotion to full professor”).
Doe has not met his burden of establishing that the Ex
parte Young exception to Eleventh Amendment immunity
applies as to the § 1983 claims against Defendants C.D.
Smith, Jr., Shane Hooper, Tom Duff, Dr. Ford Dye, Ann H.
Lamar, Dr. Alfred E. McNair, Jr., Chip Morgan, Hal Parker,
Alan W. Perry, Christy Pickering, Dr. Doug W. Rouse, Dr. J.
Walt Starr, and Glenn F. Boyce-the Commissioner and members
of the Board of Trustees of IHL- or the official-capacity
claims against Murry and Ussery. Those claims are dismissed
for lack of subject-matter jurisdiction. The Ex parte
Young claim against Vitter will be addressed later in
the breach-of-contract claim against the State and arms of
the State, Doe is correct that Mississippi has
“waive[d] its immunity from suit for a breach of
contract when it enters into a contract.” Pl.'s
Mem.  at 33; see Cig Contractors, Inc. v. Miss. State
Bldg. Comm'n, 399 So.2d 1352, 1355 (Miss. 1981). But
a state's “general waiver of sovereign immunity . .
. does not constitute a waiver by the state of its
constitutional immunity under the Eleventh Amendment from
suit in federal court.” Fla. Dep't of Health
& Rehab. Servs. v. Fla. Nursing Home Ass'n, 450
U.S. 147, 150 (1981). So “[w]hile Mississippi has
waived its state sovereign immunity to suit in state court
for breach of contract, there is no unequivocal statement of
its intent to also waive its Eleventh Amendment immunity to
suit in federal court.” Moore v. Univ. of Miss.
Med. Ctr., 719 Fed.Appx. 381, 387-88 (5th Cir. 2018).
Doe's breach-of-contract claims against the State
Defendants are dismissed without prejudice for lack of
Title IX Claims
IX provides: “No person . . . shall, on the basis of
sex, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any
education program or activity receiving Federal financial
assistance.” 20 U.S.C. § 1681(a). Defendants
primarily assert three arguments for dismissing the Title IX
claims: (1) the University is the only defendant properly
characterized as an education program or activity that
receives federal funding and is therefore the only defendant
potentially liable under Title IX; (2) monetary damages are
not available under Title IX; and (3) the Amended Complaint
otherwise fails to state a claim under Title IX. The Court
concludes that Doe's Title IX claim withstands
Supreme Court has held that Title IX is enforceable through
an implied private cause of action. Cannon v. Univ. of
Chicago, 441 U.S. 677 (1979). And as Spending Clause
legislation, “Title IX generates liability when the
recipient of federal funds agrees to assume liability.”
Pederson v. La. State Univ., 213 F.3d 858, 876 (5th
Cir. 2000). “For State and local governments, only the
department or agency which receives the aid is covered. Where
an entity of state or local government receives federal aid
and distributes it to another department or agency, both
entities are covered.” Alegria v. Tex., No.
G-06-0212, 2007 WL 2688446, at *13 (S.D. Tex. Sept. 11,
2007), aff'd sub nom. Alegria v. Williams, 314
Fed.Appx. 687 (5th Cir. 2009). Finally, a party asserting
claims under Title IX may seek monetary damages. Franklin
v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 73 (1992);
see also Fryberger v. Univ. of Ark., 889 F.3d 471,
477 (8th Cir. 2018) (holding that monetary damages are
available under Title IX).
courts have allowed Title IX claims in the context of
university disciplinary proceedings, starting with the Second
Circuit's decision in Yusuf v. Vassar College,
35 F.3d 709, 714-15 (2d Cir. 1994). Defendants say, however,
that “the Fifth Circuit has declined to do so”
and therefore this Court should likewise “decline to
adopt such theories of liability.” Defs.' Mem. 
at 12-13 (citation omitted). For starters, Defendants cite no
Fifth Circuit cases that actually “declined to
adopt” this theory. Id. And while the Fifth
Circuit may not have directly examined the question, it has
reviewed several Title IX claims related to university
disciplinary proceedings. See Arceneaux v. Assumption
Par. Sch. Bd., No. 17-30269, 2018 WL 2271077, at *3 (5th
Cir. May 17, 2018); Plummer v. Univ. of Houston, 860
F.3d 767 (5th Cir. 2017).
district courts within the Fifth Circuit have consistently
addressed this type of Title IX claim. See, e.g.,
Klocke v. Univ. of Tex. at Arlington, No.
4:17-CV-285-A, 2018 WL 2744972, at *5 (N.D. Tex. June 7,
2018). Based on this history and the text of Title IX itself,
the statute applies in this context.
its standards, the Second Circuit developed “two
general theories” under which “a university can
face Title IX liability for imposing discipline when gender
is a motivating factor”: the erroneous-outcome and
selective-enforcement theories. Plummer, 860 F.3d at
777. Two additional theories have also developed: the
deliberate-indifference and archaic-assumptions theories.
Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir.
2018). Doe asserts claims under the erroneous-outcome and
deliberate-indifference standards for Title IX liability.
Pl.'s Mem.  at 7.
with erroneous outcome, Doe says “he was innocent of
the charges that were presented and wrongfully found to have
committed an offense in [the University's] disciplinary
proceedings.” Pl.'s Mem.  at 7. A
“[p]laintiff who claim[s] that an erroneous outcome
was reached must allege particular facts sufficient to cast
some articulable doubt on the accuracy of the outcome of the
disciplinary proceeding.” Yusuf, 35 F.3d at
715. Additionally, the plaintiff must “allege
particular circumstances suggesting that gender bias was a
motivating factor behind the erroneous finding. . . . Such
allegations might include, inter alia, statements by members
of the disciplinary tribunal, statements by pertinent
university officials, or patterns of decision-making that
also tend to show the influence of gender.”
Id. Viewed in the light most favorable to Doe, the
Amended Complaint pleads a plausible claim that the sexual
encounter was consensual and that the outcome was
erroneous. Not surprisingly, Defendants do not
directly challenge this point and instead focus on the second
element-whether Doe has pleaded facts showing gender bias.
begin, the Amended Complaint does include references to
gender bias that are conclusory and therefore must be ignored
under Iqbal/Twombly. See, e.g.,
Am. Compl.  ¶¶ 6 (“[Defendants] failed to
obtain and/or consider relevant exculpatory evidence during
the course of the investigation and exhibited gender bias
towards John Doe.”), 167 (“The investigation was
biased against Doe, based upon his gender . . . .”).
said, Doe also pleaded facts, most notably those addressing
Defendant Ussery's conduct as Title IX Coordinator. Under
the University's Title IX policies, Ussery was charged
with investigating the allegation and “compil[ing]
all evidence, including the testimony of various
witnesses, into a report.” Sexual Misconduct Policy
[7-17] at 8 (emphasis added). Yet the Amended Complaint
catalogs exculpatory evidence Ussery excluded:
a. The report submitted by Ussery did not advise of Jane
Roe's statement that she initially did not believe she
was raped but her ...