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Doe v. Virginia Polytechnic Institute and State University

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

August 15, 2019

JOHN DOE, Plaintiff,


          Elizabeth K. Dillon United States District Judge.

         Each of these four cases involves a male plaintiff who was a student at defendant Virginia Polytechnic Institute and State University (Virginia Tech), alleges that he was wrongfully accused of some type of sexual misconduct, and was disciplined by Virginia Tech. In each, the court granted leave to proceed by pseudonym, and the court will refer to each plaintiff by that name (and/or the last three numbers of his corresponding case number) throughout this opinion. In their respective complaints, the plaintiffs name the university as well as individual employees of Virginia Tech who were involved in the disciplinary proceedings.

         The four cases are not consolidated but are related in some ways. Significantly, the cases are brought by the same counsel, assert the same claims (although the factual basis underlying those claims is different for each case), and the defendants raise nearly identical arguments in their motions to dismiss, so there is significant overlap as to the legal challenges before the court. Accordingly, the court held a single hearing to address the pending motions in all four cases. At the hearing, a number of the issues raised in the briefing were resolved, either by agreement or by the court's ruling. This opinion addresses all of the remaining issues raised by the pending motions in each case.

         I. BACKGROUND

         Because the court's rulings make it unnecessary to discuss all four plaintiffs' claims in detail, the court discusses detailed factual background only as needed and in the course of its legal discussion. But the court provides here an extremely over-simplified view of the facts of each case, simply to help place the legal claims and issues in context.

         John Doe (-170 case) was a varsity track athlete set to graduate from Virginia Tech in the spring of 2016. He was accused by Jane Roe of attempting to sexually assault her in January 2016, but he claims there was no encounter with her at all and instead that she misidentified him and mistook him for some other track athlete. After a hearing, he was found responsible for several violations of Virginia Tech policies, including verbal/non-verbal assault, sexual assault, and battery, and he was expelled. He appealed, but the appeal was denied.

         James Doe (-320 case) was accused of sexually assaulting Jan Roe in November 2015 after a date party at which both had consumed alcohol. He claims that the encounter was consensual. In April 2016, she lodged an accusation against him, and, after a hearing, he was found responsible for rape. He was permanently dismissed from the university and required to leave campus within 24 hours. His appeal was denied.

         Jack Doe (-492 case) was a Ph.D. student who was accused of sexually assaulting another male student in August 2015 after both had consumed alcohol. Jack claimed the encounter was consensual, but he was found responsible for sexual battery in September 2016 and suspended for one year (until Summer session 2017). He appealed, but the decision was not reversed.

         Lastly, Joseph Doe (-523 case) was accused of assaulting June Roe, a fellow student, in February 2017. Both students were members of the Virginia Tech Snow Club, and they had previously had sexual encounters. The assault allegedly occurred at a rental house at Snowshoe, West Virginia, after a day of skiing and when both had consumed alcohol. Joseph claims that the encounter was consensual and instigated by June. In May 2017, Joseph was found responsible for sexual violence, rape, and sexual assault, and he was suspended until Fall 2019. He appealed, but the finding and penalty were not reversed.

         Each of the complaints asserts the following claims:

Count I: a federal procedural due process claim brought pursuant to 42 U.S.C. § 1983, based on both a property interest and a liberty interest;
Count II: a state procedural due process claim that all parties agree is coextensive with the federal claims and so rises or falls with it;[1]
Count III: a claim brought pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88 (Title IX), which is, by agreement, now asserted against Virginia Tech only and not any individual defendants;
Count IV: a common-law negligence claim under Virginia law; and
Count V: a breach of contract claim under Virginia law.

         Additionally, the two-later filed cases include a Count VI that asserts a claim alleging that the defendants' actions in suspending or expelling the plaintiffs violate Virginia's law of associations. In the two earlier cases, plaintiffs have filed motions to amend their complaints to include the same claim. Although the proposed amended complaints are unclear, plaintiffs' counsel clarified at the hearing that they were asserting the law-of-associations claims against the individual defendants only and only in their individual capacities. Each complaint also contains a separate count titled as a “declaratory judgment” count.

         There are essentially three motions pending in each case.[2] The first is defendants' motion to dismiss for lack of jurisdiction, the second is defendants' motion to dismiss for failure to state a claim, and the third is plaintiffs' motion for leave to file amended complaints.

         In addition to some other changes (such as dropping defendant Scott in -492 and omitting the negligence claims), the primary changes in the proposed amended complaints are three-fold. First, they include an assertion that defendant Shushok has “shown bias against males accused of sexual misconduct on social media, ” giving as an example that he “said on Twitter that the correct way to deal with sexual violence is to ‘talk to our boys.'” (See, e.g., Joseph's Proposed Am. Compl. ¶¶ 33, 86, Dkt. No. 32-1 (-523 case).) Second, they include additional allegations related to the appeals by the plaintiffs, including general assertions that the appeals process did not provide a meaningful opportunity for each plaintiff to clear his name and that the appeal process “disproportionately and negatively affects male students.” (See, e.g., id. ¶¶ 52, 68, 87.) Third, they include assertions that Virginia Tech's notation on each plaintiff's transcript regarding the basis for his suspension or expulsion constituted a separate due process violation.[3] (See, e.g., id. ¶¶ 58, 69.)

         At the hearing, plaintiffs' counsel repeatedly sought leave to amend on other grounds, although counsel acknowledged that no second proposed amended complaint has been filed, nor has a subsequent motion to amend.[4] Nonetheless, the court noted that it would consider whether to grant leave to file another motion to amend after ruling on the motions to dismiss.

         In their motions, defendants seek dismissal of all claims on various grounds. At the motions hearing, the court confirmed that the parties agree that the negligence claims are subject to dismissal with prejudice because plaintiffs failed to give the required notice and the statute of limitations has now run. Thus, as the court noted at the hearing, Count IV of each complaint is dismissed with prejudice. Similarly, plaintiffs agree that the breach of contract claim in Count V of each case is barred by the Eleventh Amendment and cannot be brought in this court. Although they ask that defendants consent to the state claims being heard in the present matter, there is no consent. Thus, Count V in each complaint also is dismissed, but without prejudice to plaintiffs' ability to assert that claim in state court.

         As noted above, the parties also agreed that the individual defendants could not be named in the Title IX counts, and so they are dismissed from those counts. Plaintiffs also agreed in their briefing that the Commonwealth's Eleventh Amendment immunity bars claims (except the Title IX claim) for money damages against Virginia Tech and all claims for damages against individuals in their official capacities.

         After those rulings and concessions, left in the case are the two due process claims (Counts I and II); the Title IX claim (Count III), the claim under Virginia's law of associations, and the count seeking declaratory relief.

         The relief under the first two claims also has been limited by agreement. With regard to the Section 1983 claim, remaining are claims for declaratory and injunctive relief against Virginia Tech, and damages against individuals only in their individual capacities. The parties dispute whether plaintiffs also may continue with their official capacity claims under the Ex parte Young exception, 209 U.S. 123 (1908), which allows official capacity claims under § 1983 to be asserted against state officials where a plaintiff seeks only prospective, injunctive relief. Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 n.10 (1989) (recognizing exception); see also Gray v. Laws, 51 F.3d 426, 430 (4th Cir. 1995) (same). That issue will be addressed in Section II.B. infra. As to the state law due process claim, only claims against the individual defendants in their individual capacities remain.

         As to those remaining counts, limited in the scope of relief as noted above, defendants have asserted a number of grounds for dismissal. The court addresses them below.


         A. Defendants' Motions: Standard of Review

         1. Motions to Dismiss for Lack of Jurisdiction

         In deciding a Rule 12(b)(1) motion, “the district court is to regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999) (quoting Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991)). It must, however, “view[] the alleged facts in the light most favorable to the plaintiff, similar to an evaluation pursuant to Rule 12(b)(6).” Lovern v. Edwards, 190 F.3d 648, 654 (4th Cir. 1999). Dismissal under Rule 12(b)(1) is proper “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Evans, 166 F.3d at 647 (quoting Richmond, Fredericksburg & Potomac R.R, 945 F.2d at 768).

         2. Motions to Dismiss for Failure to State A Claim

         To survive a Rule 12(b)(6) motion to dismiss, a plaintiff's allegations must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This standard “requires the plaintiff to articulate facts, when accepted as true, that ‘show' that the plaintiff has stated a claim entitling him to relief, i.e., the ‘plausibility of entitlement to relief.'” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Iqbal, 556 U.S. at 678). The plausibility standard requires more than “a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678.

         In determining whether the plaintiff has met this plausibility standard, the court must accept as true all well-pleaded facts in the complaint and any documents incorporated into or attached to it. Sec'y of State for Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705 (4th Cir. 2007). Further, it must “draw[] all reasonable factual inferences from those facts in the plaintiff's favor, ” Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999), but it “need not accept legal conclusions couched as facts or ‘unwarranted inferences, unreasonable conclusions, or arguments, '” Wag More Dogs, LLC v. Cozart, 680 F.3d 359, 365 (4th Cir. 2012) (quoting Giarratano v. Johnson, 521 F.3d 298, 302 (4th Cir. 2008)).

         Typically, when a defendant moves to dismiss under Rule 12(b)(6), a court is “limited to considering the sufficiency of allegations set forth in the complaint and the ‘documents attached or incorporated into the complaint.'” Zak v. Chelsea Therapeutics Int'l, Ltd., 780 F.3d 597, 606 (4th Cir. 2015) (quoting E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435, 448 (4th Cir. 2011)). It may, however, consider a document attached to a motion to dismiss when the document is “‘integral to and explicitly relied on in the complaint, '” and when the document's authenticity is unchallenged. Zak, 780 F.3d at 606 (quoting Am. Chiropractic Ass'n v. Trigon Healthcare, Inc., 367 F.3d 212, 234 (4th Cir. 2004)). Here, the defendants have attached to their motions to dismiss the notice to each plaintiff informing him of the discipline against him and notifying him of the opportunity to appeal. The court believes that these notices are properly considered on a motion to dismiss because they are integral to the allegations in the complaint, plaintiffs rely on them for their claims, and their authenticity is unchallenged.

         B. Motions to Dismiss for Lack of Jurisdiction

         Defendants' motions to dismiss for lack of subject-matter jurisdiction are premised on a number of grounds. After the areas of agreement or issues resolved at the hearing, however, only one issue remains as to subject-matter jurisdiction. Specifically, defendants argue that plaintiffs are not seeking prospective equitable relief so as to fall within the Ex parte Young exception to sovereign immunity and to be permitted to proceed on their official-capacity claims. This arguably also affects the viability of the count titled “declaratory judgment, ” although to obtain declaratory judgment, plaintiffs obviously would have to prevail on one of their substantive claims.[5]

         Defendants correctly assert that the Ex parte Young exception is not implicated where there is not any ongoing violation of federal law and a plaintiff is simply trying to rectify the harm done in the past. Yunsong Zhao v. Va. Polytechnic Inst. & State Univ., No. 7:18cv189, 2018 WL 5018487, at *9-10 (W.D. Va. Oct. 15, 2018) (citing Puerto Rico Aquaduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993)). But here, plaintiffs are seeking to expunge and clear their academic records, among other injunctive relief, which numerous courts have noted is a request for prospective relief and not barred by the Eleventh Amendment. E.g., Shepard v. Irving, 77 Fed.Appx. 615, 620 (4th Cir. 2003) (explaining that a request to expunge a grade from an academic record is not barred by Eleventh Amendment); Doe v. Cummins, 662 Fed.Appx. 437, 444 (6th Cir. 2018) (holding that the Eleventh Amendment did not bar the expunging of a record of sexual assault discipline from a university's files); Johnson v. W. State Colo. Univ., 71 F.Supp.3d 1217, 1230 (D. Colo. 2014) (“[A] request to expunge an academic record is a request for prospective relief.”). Thus, the court concludes that plaintiffs' claims for injunctive relief fall within the Ex parte Young exception to the Eleventh Amendment. Plaintiffs' claims against individual defendants in their official capacities survive the Rule 12(b)(1) motion.

         C. Motions to Dismiss for Failure to State A Claim

         Defendants also have filed motions to dismiss for failure to state a claim. The arguments defendants raise in their motions to dismiss for failure to state a claim are multi-faceted. In broad terms, their first argument is that plaintiffs' due process and Title IX claims are time-barred.

         Second, defendants also argue that each plaintiff's due process claims fail to state a claim for relief because he fails to allege a recognized liberty or property interest and because, in any event, he received notice and an opportunity to be heard, and thus, he received all the process he was due. Even if he could overcome these hurdles, defendants argue that all the individual defendants are entitled to qualified immunity. The qualified immunity argument is based on defendants' assertion that it is not clearly established that “a trial-like proceeding is necessary for student conduct hearings.” (Dkt. No. 19 at 20, -523 case.)

         Third, defendants argue that each plaintiff has failed to allege any action by certain individual defendants and thus they cannot be liable for purposes of any claims. As to other individual defendants, they claim that they should be dismissed because the allegations against them are simply that they either believed the accuser's version of events over plaintiff's or reached an outcome with which plaintiff disagrees.

         Fourth and finally, they argue that Virginia's law of associations does not apply in this context.

         1. Statute of Limitations

         The parties disagree over the threshold issue of whether the court can even consider a statute of limitations defense-an affirmative defense-on a motion to dismiss. The Fourth Circuit has explained that, where all facts necessary to show the time bar clearly appear “on the face of the complaint, ” then a limitations defense appears on the face of the complaint and may be addressed as part of a motion to dismiss. Goodman v. Praxair, Inc., 494 F.3d 458, 464, (4th Cir. 2007). In these cases, the court concludes that the facts necessary to address the defense are contained on the face of each complaint. Thus, the court will consider the arguments based on a limitations defense.

         a. Timeliness of Due Process Claims

         Turning first to the due process claims, defendants argue that the due process claims of John, James, and Jacob are all barred by the applicable limitations period.[6] On this issue, the parties agree that the due process claims are subject to a two-year statute of limitations, because Section 1983 borrows the forum state's personal injury limitations period and, in Virginia, that is two years. Owens v. Baltimore City State Atty. Office, 767 F.3d 379, 388 (4th Cir. 2014); A Soc'y Without A Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011) (explaining that the statute of limitations for § 1983 claims is the state limitations period for personal injury actions); Va. Code § ...

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