United States District Court, E.D. Virginia, Richmond Division
MALCOLM X. SHEPPARD, Plaintiff,
VISITORS OF VIRGINIA STATE UNIVERSITY and HENRY DEBOSE, Individually, Defendants.
MEMORANDUM OPINION (GRANTING DEFENDANTS' MOTION
E. Hudson Senior United States District Judge
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.)
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
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
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.)
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
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).
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
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
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.
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. Accordingly, Plaintiffs claim in Count I
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.
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.
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,