ROY B. DALTON, Jr., District Judge.
This cause is before the Court on consideration of the Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 28), Plaintiff's Memorandum of Law in Opposition to Defendants Motion to Dismiss (Doc. 36), and counsel's arguments and representations during a hearing held on May 18, 2017.
On December 28, 2016, former Rollins College student Nicholas Mancini ("
In his 37-page Amended Complaint,
Rollins and the Individual Defendants jointly filed a Motion to Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) (Doc. 28 ("
The Federal Rules of Civil Procedure set forth minimum pleading requirements. Rules 8 and 10 require plaintiffs to provide short and plain statements of their claims with simple and direct allegations set out in numbered paragraphs and distinct counts. See Fed. R. Civ. P. 8(a), (d) ("Each allegation must be simple, concise, and direct."); see also Fed. R. Civ. P. 10(b). If a complaint fails to state a plausible or legally sufficient claim, the defendant may file a motion to dismiss under Rule 12(b)(6). See Popham v. Cobb Cty., Ga., 392 F. App'x 677, 678 (11th Cir. 2010).
In resolving a Rule 12(b)(6) motion, courts must accept as true all well-pled factual allegations and determine whether the complaint sets forth plausible claims—that is claims with sufficient "factual content" to allow "the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." See Ashcroft v. Iqbal, 556 U.S. 662, 672, 678-79 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)). Courts need not "accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986). Further, courts may dismiss any claim that rests only on "conclusory allegations, unwarranted deductions of facts or legal conclusions masquerading as facts." See Oxford Asset Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).
According to the Amended Complaint,
In 2015, Rollins accepted Plaintiff for admission to the Class of 2019, awarded him a $60,000.00 academic scholarship, and provided him with copies of the Code and the Policy. (Id. ¶¶ 35, 36.) Plaintiff matriculated in the Fall of 2016, and he moved into the Room with his roommate ("
At 2:30 a.m., the Accuser allegedly entered the Room without invitation. After approximately one half hour of visiting, during which the Accuser discussed the events of her evening, the Visitors departed, but Accuser stayed. Approximately ten minutes later, the Accuser allegedly kissed Plaintiff for five minutes before pulling back and stating that she should not "do this" because she has a boyfriend. Plaintiff responded that was fine. Although the Accuser then walked to the door, she did not leave. Instead, she "returned to the futon, straddled [Plaintiff] and began to kiss him again" without obtaining his consent. After several minutes, the Accuser stopped kissing Plaintiff, went over to S.P., and started kissing him. After another five minutes, the Accuser stopped, and again stated she has a boyfriend. Plaintiff and S.P. then walked the Accuser to her room which was in the same dormitory. (See id. ¶¶ 45-48, 85.) These late-night events are referred to as the "
The day after the Incident, at 11:30 a.m., the Accuser and her roommate ("
On
The week following the Initial Meeting, the Coordinator ignored Plaintiff's requests for information. (See id. ¶ 56.) In addition, Rollins took no action against Accuser after Plaintiff reported that the Accuser violated the Contact Order by attending a party sponsored by Plaintiff's fraternity and lacrosse team ("
On
On February 1, 2016, the untrained Investigator conducted a scheduled interview with Plaintiff, but did not ask him "to submit a list of witnesses." (See id. ¶¶ 57, 70, 74.) The Investigator also did not give Plaintiff "the opportunity to submit questions to be asked" of the Accuser and other witnesses. (See id.) Rather, the Investigator: (1) interviewed witnesses chosen solely by the Investigator—including "high school girls" who opined on the Accuser's appearance in Instagram photos; (2) incorrectly summarized the statements of K.E. and another witness ("
Plaintiff alleges that the Decision was made without conducting a hearing or obtaining mitigation information from Plaintiff, and the Coordinator provided the April Letter to Plaintiff on
Both Plaintiff and the Accuser appealed the Decision, but Plaintiff does not allege how the appeals were resolved. (See id. ¶¶ 66, 96.) Plaintiff does allege that K.E. "submitted a two-page statement with [Plaintiff's appeal] noting corrections and clarifications to her testimony." (See id.) The Investigator also "submitted corrections with [Plaintiff's] appeal." (See id. ¶ 72.) On
Plaintiff alleges that the Sanctions imposed on him by Rollins are unduly harsh and are causing "irreversible damage to [his] educational, career, and future employment prospects." (See id. ¶ 160.) Plaintiff further alleges that Defendants' actions have caused him to sustain "emotional distress, loss of educational and career opportunities, economic injuries and other direct and consequential damages." (See id. ¶¶ 139, 156 & p. 36.) In addition to damages for these injuries, Plaintiff seeks judicial declarations that:
Among other things, Title IX mandates that "[n]o person in the United States 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). Based on this mandate, and by analogy to Title VII discrimination claims, victims of gender discrimination in disciplinary proceedings may bring an implied right of action against funding recipients.
Under Title IX, students "attacking a university disciplinary proceeding on grounds of gender bias" may assert two types of claims—"Erroneous Outcome" and "Selective Enforcement."
To state a plausible Erroneous Outcome claim, the Plaintiff must allege facts sufficient to: (1) "cast some articulable doubt on the accuracy of the outcome of the disciplinary proceeding;" (2) support a plausible inference of gender bias; and (3) establish a causal connection between the alleged gender bias and the erroneous outcome. See Yusuf, 35 F.3d at 715 (explaining that the plaintiff in an Erroneous Outcome case is "innocent" but "wrongly found to have committed an offense" due to gender bias). Conclusory assertions concerning bias and discriminatory intent are insufficient to establish gender bias at the pleading stage. See id. at 715-16.
The Court agrees with Plaintiff that one may plausibly infer that the Decision was erroneous "given the pleaded facts" that: (1) the Accuser initiated kissing with him, and the morning after the Incident, the Accuser confessed to Plaintiff and K.E. that she was responsible for the Incident (see Doc. 36, p. 10); (2) two "esteemed Rollins' Wellness Center members expressed serious concerns about the integrity of the Investigator and the investigation" (see Doc. 19, ¶ 91); and (3) a polygraph conducted by a polygraph expert "indicate[s] there is insufficient proof that it is more likely than not that [Plaintiff] is guilty of sexual assault" (see id. ¶ 92). See Doe v. Brown Univ., 166 F.Supp.3d 177, 185 (D.R.I. 2016) (finding that allegations of consent cast sufficient doubt on accuracy of sexual misconduct finding).
Contending that he has pled sufficient facts to permit a plausible inference that Rollins had a bias against males that caused the "erroneous" Decision, Plaintiff points to his allegations that:
(See Doc. 36, pp. 10-13.)
As to the OCR Allegations, the Court notes that absent university-specific allegations of community pressure, allegations of a national bias against males based on the OCR Letter have been found insufficient to support an inference of gender bias. See Cummins, 662 F. App'x at 452-53 (holding that conclusory and unsupported allegations concerning the DOE and OCR Letter were "insufficient to create a plausible claim of gender bias").
Plaintiff's Training Allegations also fail to support an inference of gender bias by Rollins because there is no logical connection between an inadequately trained Investigator and gender bias. Logically, an untrained investigator would pose similar problems and risks to both parties—regardless of sex. Thus, the Training Allegations are entitled to no weight in the gender bias analysis.
Allegations concerning a defendant's inexplicable refusal to contact specific exculpatory witnesses identified by a male accused is a factor that courts have considered pertinent to the question of gender bias. However, here Plaintiff has not identified a single specific witness that was not interviewed despite Plaintiff's request, nor has he identified the purportedly exculpatory information such witness would have provided. Absent such facts, Plaintiff's Witness Statement Allegations are entitled to little if any weight in the gender bias analysis. See Doe v. Baum, No. 16-13174, 2017 WL 57241, at *25 (E.D. Mich. Jan. 5, 2017) (dismissing Title IX claim and finding no inference of gender bias where the plaintiff did not identify "any information or witness in his favor" that was not considered during the disciplinary process).
Plaintiff's Notice Allegations also are too conclusory to raise a plausible inference of gender bias. Plaintiff has neither summarized the contents of the Initial and Additional Notices, nor has he provided copies of such documents to the Amended Complaint, and he has not identified a single specific fact that was unfairly omitted from the Initial and Additional Notices. Hence the Court is left only with Plaintiff's conclusory assertions that Rollins notices to him were inadequate. The Court need not give weight to conclusory allegations masquerading as facts.
Plaintiff's Consent Complaint Allegations concern the sort of differential treatment that supports a finding of gender bias. Plaintiff's Hostility Allegations also support a finding of gender bias. Rollins argues that such allegations are insufficient because: (1) the Hostility Allegations are just as likely attributable to a bias against accused sex offenders in general—not accused male sex offenders in particular;
To state a Selective Enforcement claim, Plaintiff must allege sufficient facts to permit the plausible inference that "a similarly-situated member of the opposite sex was treated more favorably than" the Plaintiff due to her gender. See Cummins, 662 F. App'x at 452; v. Ohio Univ., 76 F. App'x 634, (6th Cir. 2003) ("To support a selective enforcement claim," the male plaintiff must allege "that a female was in circumstances sufficiently similar to his own and was treated more favorably" by the defendant.). Here, the Complaint includes no reference to the necessary comparator; accordingly, Plaintiff has not alleged facts sufficient to state a plausible Selective Enforcement claim.
Although the Amended Complaint is deficient, it nonetheless appears that Plaintiff may be able to properly allege sufficient facts to support a claim of gender discrimination under Title IX. Accordingly, the Court will afford him an opportunity to replead.
The Fifth Amendment to the U.S. Constitution provides that no person shall be "deprived of life, liberty, or property, without due process of law." For students subjected to disciplinary proceedings resulting in suspension or expulsion, due process of law requires "reasonable notice and an opportunity to have a hearing." See Nash v. Auburn Univ., 812 F.2d 655, 660 (11th Cir. 1987); see also Cummins, 662 F. App'x at 452 (noting that suspension from college "clearly implicates a property interest"). Reasonable notice must be "calculated under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." See Nash, 812 F.2d at 661-63 (rejecting plaintiffs' allegations that timing and substance of notice deprived them of reasonable notice of academic dishonesty charge).
"Title 42 U.S.C. § 1983 provides every person with the right to sue those acting under color of state law for violations of federal constitutional" provisions. Williams v. Bd. of Regents of Univ. Sys. of Ga., 477 F.3d 1282, 1299 (11th Cir. 2007). A private university like Rollins "is generally not subject to the constitutional protections of the Fifth Amendment." See Doe v. Washington & Lee, No. 6:14-cv-00052, 2015 WL 4647996, at *8 (W.D. Va. Aug. 5, 2015) (citing San Francisco Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 542 (1987)); see also Rendell-Baker v. Kohn, 457 U.S. 830, 839 (1982). Such private entities act under color of law—or as a "state actor"—only when "there is such a `close nexus between [the government actor] and the challenged action' that seemingly private behavior `may be fairly treated as that of the State itself.'" See Brentwood Acad. v. Tenn. Secondary Athletic Ass'n, 531 U.S. 288, 296 (2001); Hiwassee College, Inc. v. S. Assoc. of Colls. & Schools, 531 F.3d 1333, 1335 n.3 (11th Cir. 2008). Generally, allegations that a private school receives public funding and is obligated to comply with government regulations is not enough to plead the state actor requirement. See L.P. v. Marian Catholic High Sch., 852 F.3d 690, 696 (7th Cir. 2017) (citing Rendell-Baker v. Kohn, 457 U.S. 830, 840-42 (1982)).
Based on these settled legal standards, Count II is due to be dismissed unless Plaintiff alleges facts permitting plausible inferences that: (1) Rollins deprived him of a property right without "reasonable notice and an opportunity to have a hearing" as required by the Fifth Amendment;
Finally, the Court finds that the Amended Complaint adequately alleges Plaintiff's state law claims. In particular, Plaintiff's allegations that Defendant disregarded its own policies in reaching the Decision are sufficient to state plausible contract and quasi-contractual claims. See Lynn Univ., 2017 WL 237631, at *5 (denying motion to dismiss breach of contract and good faith and fair dealing claims based on defendant's deviation from procedures set out in defendant's published policies). Further, Rollins argument that the State Law Claims should be dismissed as contradictory and inconsistent is meritless—Plaintiff is entitled to allege multiple inconsistent claims. See Fed. R. Civ. P. 8.
Accordingly, it is
