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Sheppard v. Visitors of Virginia State University

United States District Court, E.D. Virginia, Richmond Division

November 14, 2019

MALCOLM X. SHEPPARD, Plaintiff,
v.
VISITORS OF VIRGINIA STATE UNIVERSITY and HENRY DEBOSE, Individually, Defendants.

          MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION TO DISMISS)

          Henry E. Hudson Senior United States District Judge

         This matter is before the Court on Defendants'-the Visitors of Virginia State University ("VSU") and Henry DeBose ("DeBose"), a VSU administrator (collectively, the "Defendants")-Motion to Dismiss for Failure to State a Claim and Lack of Subject Matter Jurisdiction (ECF No. 20). Plaintiff Malcolm X. Sheppard ("Plaintiff) filed this action against Defendants, contending that Defendants improperly suspended him from VSU. Plaintiff alleges in Count I that VSU violated Title IX, 20 U.S.C. § 1681(a). (Am. Compl. ¶¶ 43-46, ECF No. 19.) In Counts II and III, respectively, Plaintiff also states claims against DeBose, in his individual capacity, under 42 U.S.C § 1983, for violations of Plaintiff s due process rights and equal protection rights under the Fourteenth Amendment. (Id. ¶¶ 47-55, 56-58.)

         The parties have fully briefed the issues, and the Court will dispense with oral argument because the facts and legal contentions have been adequately presented to the Court. See E.D. Va. Local Civ. R. 7(J). For the reasons stated herein, Defendants' Motion to Dismiss will be granted.

         Plaintiff filed his original Complaint in this action on October 24, 2018 (ECF No. 1). This Court dismissed the Complaint for failure to state a claim in a Memorandum Opinion issued on April 25, 2019 (ECF No. 17). This Memorandum Opinion incorporates the facts set out in the previous Memorandum Opinion.[1]

         Plaintiffs Amended Complaint, filed on May 14, 2019, contains some new factual allegations. To enhance Count I, Plaintiff alleges that he and the female students involved in the underlying incident were all subject to the same Student Code of Conduct, had similar misconduct charges leveled against them, faced the same VSU adjudicatory process, and shared the same disciplinary history. (Am. Compl. ¶ 43.) To enhance Count II, Plaintiff claims that he has property interests in his continued enrollment at VSU, not being arbitrarily and haphazardly suspended, and not being summarily suspended. (Id. ¶ 48.) Finally, Plaintiff brings an additional claim, asserting that DeBose discriminated against him because he is male. (Id. ¶ 56.)

         "A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only 'a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the ... claim is and the grounds upon which it rests."' Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). A complaint need not assert "detailed factual allegations" but must contain "more than labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above the speculative level," to one that is "plausible on its face," rather than merely "conceivable." Id. (citations omitted). In considering such a motion, a plaintiffs well-pleaded allegations are taken as true, and the complaint is viewed in the light most favorable to the plaintiff. T.G. Slater & Son v. Donald P. & Patricia A. Brennan LLC, 385 F.3d 836, 841 (4th Cir. 2004) (citation omitted). Legal conclusions enjoy no such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Title IX provides in pertinent part that "[n]o 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). This prohibition is enforceable through an implied private right of action against the institution receiving federal funds. Davis Next Friend LashondaD. v. Monroe Cty. Bd. of Educ, 526 U.S. 629, 639 (1999) (finding an implied private right of action to enforce Title IX where the recipient of federal funds is being held liable for its own misconduct). To properly state a claim under Title IX, a plaintiff must allege specific facts demonstrating that the plaintiff was treated less favorably than a similarly situated student and that the plaintiffs gender was a motivating factor for the different treatment. See Yusuf v. Vasar Coll., 35 F.3d 709, 715 (2d Cir. 1994); Streno v. Shenandoah Univ., 278 F.Supp.3d 924, 932 (W.D. Va. 2017).

         Plaintiffs may pursue a Title IX claim under either an erroneous outcome or selective enforcement theory. Yusuf, 35 F.3d at 709. As three federal courts of appeals have recognized, the selective enforcement theory "asserts that, regardless of the student's guilt or innocence, the severity of the penalty and/or the decision to initiate the proceeding was affected by the student's gender." Yusuf, 35 F.3d at 715; see also Doe v. Miami Univ., 882 F.3d 579, 589 (6th Cir. 2018) (citing Yusuf, 35 F.3d at 715); Plummer v. Univ. of Houston, 860 F.3d 767, 777-78 (5th Cir. 2017) (citing Yusuf 35 F.3d at 715). "However, allegations of a procedurally or otherwise flawed proceeding ... combined with a conclusory allegation of gender discrimination is not sufficient to survive a motion to dismiss." Yusuf 35 F.3d at 715.

         Here, Plaintiff pursues his claim exclusively under the selective enforcement theory. In his Amended Complaint, Plaintiff attempts to bolster his original argument by alleging additional facts that highlight the ways in which he was similarly situated to the female students involved in the incident that led to his removal from VSU. He states that all three students were subject to the same Student Code of Conduct, faced charges from the VSU Department of Police, were subjected to the same VSU adjudicatory process, and had the same prior disciplinary history. Significantly, he also alleges that their misconduct stemmed from the same incident and that, despite this fact, VSU took swift action against him solely because he is male and the other students are female.

         While Plaintiffs "same incident" argument may be true in a broad sense, there are several fatal distinctions between the misconduct of Plaintiff and the misconduct of the female students. First, the alleged actions that led to the misconduct charges occurred at different places and at different times. Furthermore, the female students involved here are not also subject to a protective order issued by the Chesterfield County General District Court.

         Finally, the students faced different charges: Plaintiff faced misconduct charges for assaulting another student while the female students faced charges for theft. To properly state a claim, Plaintiff would need to allege facts that show he was treated differently than a female student who was also accused of assault. See Doe 2 v. Fairfax Cty. Sch. Bd., 384 F.Supp.3d 598, 608-609 (E.D. Va. 2019) (citing Sheppard v. Visitors of Va. State Univ., No. 3:18cv723-HEH, 2019 WL 1869856, at *4-5 (E.D. Va. Apr. 25, 2019)); Streno, 278 F.Supp.3d at 932. Thus, Plaintiff is not similarly situated to the two female students.[2] Accordingly, Plaintiffs claim in Count I fails.

         To the extent Plaintiff sues Debose in his individual capacity, the Court will also dismiss Plaintiffs Fourteenth Amendment claims brought via § 1983 in Counts II and III. In Count II, Plaintiff again fails to allege the deprivation of a protected property or liberty interest giving rise to a plausible due process violation. In Count III, Plaintiff fails to demonstrate that he was treated differently from similarly situated students or that the treatment resulted from discriminatory animus, both of which are necessary to state a claim for an equal protection violation.

         As an initial matter, Debose asserts qualified immunity as to Plaintiffs claims against him in his personal capacity. (Defs.' Mem. Supp. 19-20, ECF No. 21.) "[A] well-established principle of federal civil rights litigation is that government officials sued in their personal capacities for violations of federal rights are entitled to qualified immunity if the right was not clearly established at the time of the violation." Doe v. Rector & Visitors of George Mason Univ., 132 F.Supp.3d 712, 724 (E.D. Va. 2015) (citing Pearson v. Callahan, 555 U.S. 223, 231 (2009); Saucier v. Katz, 533 U.S. 194, 200-01 (2001)). In resolving claims of qualified immunity by government officials, the Court must determine (1) whether the alleged facts "make out the violation of a constitutional right" and (2) whether that right was "clearly established" at the time of the defendant's alleged misconduct. Pearson, 555 U.S. at 232. It is within the discretion of federal district courts to determine which step to analyze first. Id. at 242. Based on the Court's analysis of Plaintiff s § 1983 claims, see infra, Plaintiff does not provide any support for a clearly established constitutional violation by Debose. Accordingly, he enjoys qualified immunity, and Plaintiff is barred from pursuing his claims against Debose in his personal capacity.

         Further, Debose asserts Eleventh Amendment immunity for monetary relief sought from him in his official capacity. (Defs.' Mem. Supp. 21-22.) Plaintiffs relief against Debose in his official capacity is restricted to "'prospective, injunctive relief... to prevent ongoing violations of federal law ....'" Bland v. Roberts,730 F.3d 368, ...


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