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 Andrew Doe's Second Amended Complaint in its
entirety. As detailed below, Defendants' Motion to
Dismiss  is granted in part but otherwise denied.
Facts and Procedural History
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.
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 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.
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  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 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
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 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.  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.
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).
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.  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.  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)).
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.  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”).
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. The Ex parte Young claim against
Chancellor Vitter will be addressed later in this Order.
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
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).
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 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.
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 appears to assert claims under the
erroneous-outcome, selective-enforcement, and
deliberate-indifference standards for Title IX liability.
Pl.'s Mem.  at 10.
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 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.
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 (“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
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