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Doe v. The University of Mississippi

United States District Court, S.D. Mississippi, Northern Division

January 16, 2019




         Defendants in this sex-discrimination case ask the Court to dismiss Plaintiff Andrew Doe's Second Amended Complaint in its entirety. As detailed below, Defendants' Motion to Dismiss [33] is granted in part but otherwise denied.

         I. Facts and Procedural History

         This case centers around a December 2, 2016 sexual encounter between Plaintiff Andrew Doe and Bethany Roe, both undergraduate students at the University of Mississippi. While both participants were intoxicated at the time, Doe and Roe agree that they had sexual intercourse on December 2. Doe maintains that the encounter was consensual, but Roe's friends called law enforcement and reported the incident as a sexual assault. Roe underwent an examination at the hospital that evening. A representative of the University's Title IX Office appeared at the hospital and opened a Title IX investigation into the incident.

         Defendant Honey Ussery, the University's Title IX Coordinator, conducted the Title IX investigation and submitted a report to Defendant Tracy Murry, the Director of the University's Office of Conflict Resolution and Student Conduct. Murry notified Doe of the charges and scheduled a disciplinary hearing before a panel of the University Judicial Council.

         The Judicial Council held a hearing on March 31, 2017, and found Doe responsible. As punishment, the Judicial Council expelled Doe from the University. Doe appealed, and on April 27, 2017, the Appellate Consideration Board upheld the finding that Doe was responsible but changed the sanction levied from expulsion to suspension until fall 2020.

         On March 5, 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 filed an Amended Complaint on April 4, 2018, and a Second Amended Complaint on May 16, 2018, to add new defendants. The Second Amended Complaint [9] 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 fully briefed.[1]

         II. Standards

         Defendants 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 Cir. 2001).

         Defendants 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).

         Generally, 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).

         In this case, Defendants have attached a number of documents to support their motion to dismiss. And, in his response, Doe incorporated additional documents he had previously filed to support his motion for preliminary injunction. The documents the parties submitted include various publications from the United States Department of Education, Ussery's investigative report, a transcript of the hearing, 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). In sum, 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 56.”).

         III. Analysis

         A. Eleventh Amendment Immunity

         “The 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 official capacities.

         1. Section 1983 Claims

         Starting with the § 1983 claims, Doe clarifies that he is not seeking monetary damages on those claims from the State or arms of the State. Instead, he says he “is seeking declaratory and injunctive relief against these Defendants with respect to the Constitutional claims.” Pl.'s Mem. [50] at 13. But “[t]he Eleventh Amendment bars suit against a state entity, as opposed to a state official, regardless of whether money damages or injunctive relief is sought.” Voisin's Oyster House, Inc. v. Guidry, 799 F.2d 183, 186 (5th Cir. 1986). Because Doe offers no specific 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.

         As to the claims for declaratory and injunctive relief against the individual defendants named in their official capacities, Doe invokes the Ex parte Young doctrine. 209 U.S. 123 (1908). In 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).

         Defendants seem to acknowledge that Doe's “requests for expungement, sealing [of his records, ] and re-enrollment” qualify as appropriate prospective relief under Ex parte Young. Defs.' Mem. [34] at 7; 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 “the only state official with any connection to such claim for relief is the Chancellor of the University.” Defs.' Mem. [34] at 7; see Air Evac EMS, Inc. .v Tex. Dep't of Ins., Div. of Worker's Compensation, 851 F.3d 507, 519 (5th Cir. 2017) (“Thus, the Ex parte Young analysis turns on the complaint's context-including the challenged state law and defendants-to determine whether ‘the state officer, by virtue of his office, has some connection with the enforcement of the act.'” (quoting Ex parte Young, 209 U.S. at 157)).

         Doe responds by noting that he has alleged “the members of the Board of Trustees of State Institutions of Higher Learning, the Commissioner of Higher Learning and both Tracy Murry and Honey Ussery[] have duties and responsibilities related to policy development, ensuring compliance with the law and the day-to-day administration of disciplinary proceedings.” Pl.'s Mem. [50] at 15. But Doe has neither shown nor pleaded a plausible claim that any of the official-capacity defendants other than Chancellor Vitter have the ability to grant the relief requested. 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”).

         Accordingly, Doe has not met his burden of establishing the Ex parte Young exception to Eleventh Amendment immunity 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.[2] The Ex parte Young claim against Chancellor Vitter will be addressed later in this Order.

         2. Breach-of-Contract Claim

         As to 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. [50] 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 subject-matter jurisdiction.

         B. Title IX Claims

         Title 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 Defendants' arguments.

         The Supreme Court has held that Title IX is enforceable through an implied private cause of action. Cannon v. Univ. of Chi., 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).[3]

         Many 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. [34] at 9-10 (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., 773 Fed.Appx. 175, 179 (5th Cir. 2018); Plummer v. Univ. of Hous., 860 F.3d 767 (5th Cir. 2017).

         So too, 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.

         As for 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 appears to assert claims under the erroneous-outcome, selective-enforcement, and deliberate-indifference standards for Title IX liability. Pl.'s Mem. [50] at 10.

         Starting 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. [50] at 9. 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. Defendants focus on the second element-whether Doe has pleaded facts showing gender bias.

         To 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. [9] ¶¶ 6 (“The University, Defendant Murry, and Defendant Ussery . . . exhibited a gender bias towards Andrew Doe.”), 136 (“Doe was wrongly found to have committed sexual assault[, ] and gender bias was a motivating factor.”), 142 (“The totality of the circumstances establishes that the Defendants acted out of a gender bias in reaching the erroneous outcome in this matter and have demonstrated a pattern of inherent and systemic gender bias and discrimination against male students who are accused of sexual misconduct at the University.”).

         That said, Doe also pleaded facts, including some 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 ...

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