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George v. Averett University of Danville

United States District Court, W.D. Virginia, Danville Division

July 23, 2019

NICHOLAS GEORGE, Plaintiff,
v.
AVERETT UNIVERSITY OF DANVILLE VIRGINIA, LESLIE VILLAROSE, and TIFFANY MCKILLIP FRANKS, Defendants.

          AMENDED MEMORANDUM OPINION

          JACKSON L. KISER, SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendants' Averett University of Danville, Virginia, Leslie Villarose, and Tiffany McKillip Franks's (“Defendants”) Motion to Dismiss, pursuant to Federal Rule of Procedure 12(b)(6), for failure to state a claim [ECF No. 5]. Having fully considered the evidence, the record, and the argument of the parties, I will grant Defendants' Motion to Dismiss.

         I. STATEMENT OF FACTS AND PROCEDURAL BACKGROUND [1]

         Plaintiff is a resident of North Carolina. Defendant Averett University (“Averett” or “the University”), located in Danville, Virginia, is a private university. Defendant Leslie Villarose is Dean of Students at Averett, and Defendant Tiffany McKillip Franks is Averett's President.

         Plaintiff began his education at Averett in August of 2018. (Comp. ¶ 7.) Upon his enrollment, he was provided a copy of Averett's Student Handbook, [2] which describes the rights and responsibilities of the students and the acceptable standards of conduct. (Comp. ¶ 10.) It also provides the procedures for investigation of violations of the student code of conduct, adjudication of allegations of wrongdoing, and appeals of adverse findings.

         While enrolled at Averett, Plaintiff was a member of Averett University's men's baseball team. (Comp. ¶ 13.) Although alcohol consumption by minors is illegal, Plaintiff alleges the baseball coach told players, “[D]rink whatever you want. As long as I don't get a call from the police, I'm fine.” (Id. ¶ 15.)

         Plaintiff alleges he was hazed and harassed by several of his teammates via text, specifically, by an upper classman named Adam George.[3] (Id. ¶ 20.) On October 10, 2018, Plaintiff approached Adam to discuss their differences. (Id. ¶ 21.) Plaintiff alleges Adam was inebriated. (Id. ¶ 22.) A physical altercation ensued, and Adam left the scene-drunk-and ultimately crashed the vehicle he was driving. (Id.) The University interviewed Plaintiff, Adam, and several witnesses. Plaintiff asserts the witnesses corroborated his claim that he had been taunted via text, and one witness even confirmed that Adam threw the first punch. (Id. ¶ 28.)

         On October 19, 2018, Plaintiff received an email stating he had accepted responsibility and would be suspended for the remainder of the academic year. (Id. ¶ 38.) Plaintiff alleges the University diverted from its own policies regarding fights by suspending Plaintiff; according to Plaintiff, the Handbook mandates 10 Community Service hours for a first offense of fighting. (Id. ¶ 35; Handbook pg. 68.)[4] Plaintiff alleges his teammate did not receive the same punishment for the altercation; Adam, who Plaintiff contends was a more valued athlete, was given a much less serious sanction. (Id. ¶ 40.) Plaintiff contends he was not provided with a written finding of facts, a written notification of his appeal rights, or a contact to make an appeal. (Id. ¶ 42.)

         On February 2, 2019, Plaintiff Nicholas George filed a Complaint against Defendants Averett University, Leslie Villarose, and Tiffany McKillip Franks. Plaintiff brought four counts against Defendants: “Count I-first violation of university policies and procedures-failure to base decision on preponderance of the evidence” (id. ¶¶ 54-68; “Count II-second violation of university policies and procedures-defendants did not provide Plaintiff with written notification of appeal rights” (id. ¶¶ 69-81); “Count III-failure to supervise student behavior” (id. ¶¶ 82-93); and “Count IV-negligence” (id. ¶¶ 94-105). In March of 2019, Defendants filed a Motion to Dismiss for failure to state a claim. [ECF No. 5.] Plaintiff and Defendants appeared before the Court on May 24, 2019, to present their arguments.

         After reviewing the evidence, the record, and the argument of the parties, this matter is ripe for disposition.

         II. STANDARD OF REVIEW

         To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. In determining facial plausibility, the court must accept all factual allegations in the complaint as true. Id. The Complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief” and sufficient “[f]actual allegations . . . to raise a right to relief above the speculative level . . .” Twombly, 550 U.S. at 555 (internal quotation marks omitted). Therefore, the Complaint must “allege facts sufficient to state all the elements of [the] claim.” Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003). Although “a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, ” a pleading that merely offers “labels and conclusions” or “a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.

         III. DISCUSSION

         Plaintiff has brought four counts against Defendants, and Defendants moved to dismiss all four counts. ...


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