Doe v. Bd. of Regents of the Univ. of Neb.
| Decision Date | 23 December 2020 |
| Docket Number | 4:20CV3036 |
| Citation | 509 F.Supp.3d 1133 |
| Parties | Jane DOE, and all others similarly situated, Plaintiff, v. BOARD OF REGENTS OF the UNIVERSITY OF NEBRASKA; Hank Bounds, President of the University of Nebraska, individually and in his official capacity; Ronnie Green, Chancellor of the University of Nebraska Lincoln, individually and in his official capacity; Jake Johnson, Assistant Vice Chancellor for Student Affairs, individually; Meagan Counley, Deputy Title IX Coordinator for UNL and IX Investigator and/or the Title IX Coordinator for UNL, individually and in her official capacity; Tami Strickman, Associate to the Chancellor and Title IX Coordinator, individually and in her official capacity; and Marc Pearce, Assistant Dean for Student Affairs and Administration at the University of Nebraska College of Law, individually, Defendants. |
| Court | U.S. District Court — District of Nebraska |
Abby K. Osborn, Joy A. Shiffermiller, Shiffermiller Law Firm, Lincoln, NE, for Plaintiff.
Bren H. Chambers, University of Nebraska, Lily Amare, Susan K. Sapp, Cline, Williams Law Firm, Lincoln, NE, for Defendants.
Robert F. Rossiter, Jr., United States District Judge This matter is before the Court on a Partial Motion for Judgment on the Pleadings (Filing No. 17) filed by defendants Board of Regents of the University of Nebraska ("Board"), Hank Bounds ("Bounds"), Ronnie Green ("Green"), Jake Johnson ("Johnson"), Meagan Counley ("Counley"), Tami Strickman ("Strickman"), and Marc Pearce ("Pearce" and collectively, "defendants")1 pursuant to Federal Rule of Civil Procedure 12(c), (b)(1), and (b)(6) and Nebraska Civil Rule 7.1(a). The defendants move to dismiss the first cause of action in plaintiff Jane Doe's ("Doe") First Amended Complaint in part and moves to dismiss the second cause of action in its entirety. For the reasons stated below, the motion is granted.
Doe was a student at the University of Nebraska ("University") College of Law, which receives federal funding and is subject to Title IX of the Education Amendments of 1972 ("Title IX"), 20 U.S.C. § 1681 et seq. The individual defendants served in various positions at the University at the relevant time.
On or about September 2018, Doe was sexually assaulted by another law student, John Roe ("Roe"). After the assault, Roe began stalking Doe. When Doe and her friends complained about the stalking to Deanna Pina ("Pina"), another student, Pina reported the stalking to Pearce on or about October 5, 2018.
Upon receiving that report, Pearce spoke with Roe and reported the stalking allegations to the University's Office of Institutional Equity and Compliance ("IEC"). The IEC contacted Pina in the fall of 2018 to discuss her allegations that Roe was stalking Doe and other female students.
Roe's stalking continued. On or about January 9, 2019, Pearce contacted Doe to discuss her fall grades. She told him about the sexual assault. Pearce did not report the assault to the IEC until March. Roe continued to take the same classes as Doe and sit near her.
Counley was assigned to investigate Doe's complaint. On April 30, 2019, she advised Doe the investigation may take more than sixty days. Early in the investigation, Counley scheduled an interview with Roe and his legal counsel. Roe's counsel asked Counley to obtain more information from Doe and her witnesses, which she did. Doe, through counsel, complained of "disparity in the participation and notification between [Doe's] counsel and [Roe's] counsel." Doe's counsel also advised Counley the information Roe requested was designed "to harass and shame" Doe and her witnesses. Counley responded that she had to ask questions on behalf of both parties.
On or about July 17, 2019, Counley sent Doe and her counsel a draft report that would be available for review for forty-eight hours. Doe's counsel advised Counley that the draft report contained new information and that forty-eight hours was not enough to thoroughly review the report and respond. Doe noted several deficiencies in Pearce's and Counley's handling of her complaint. Doe thought the investigation favored Roe.
On August 16, 2019, Counley issued a decision, finding there had been no policy violation and advising the parties the IEC would not recommend any sanctions. The report did not address all the issues Doe identified.
Doe appealed Counley's decision. Johnson presided over the appeal. On September 24, 2019, Johnson advised Doe that although University policy did not specify an appellate standard of review, the "review should answer the question of whether the University's Investigator could reasonably conclude that, based on the totality of the available information, the complaint should be dismissed."
Johnson upheld Counley's decision. His review did not address the deficiencies Doe raised. Doe alleges Strickman condoned or directed Counley's failures. She further alleges Green and Bounds failed to address the IEC's serious deficiencies in handling Title IX complaints.
As a result of the defendants’ "actions and failure to implement and follow Title IX policies," Doe withdrew from the University. She believes other female students have suffered the same fate and "have been discouraged from formally reporting sexual assault and harassment by the Title IX office."
On February 28, 2020, Doe sued the defendants in the District Court of Lancaster County, Nebraska. She amended her pleading a few days later. On April 4, 2020, the defendants removed (Filing No. 1) the action to this Court because Doe raises federal claims. See 28 U.S.C. §§ 1331, 1441(a). Having answered (Filing No. 6) on May 8, 2020, the defendants now move for a partial judgment on the pleadings.
On a motion for judgment on the pleadings, the Court accepts the nonmoving party's factual allegations as true and draws all reasonable inferences in her favor. See Rossley v. Drake Univ. , 958 F.3d 679, 683 (8th Cir. 2020). To survive such a motion, the complaint must allege "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ); see also In re Pre-Filled Propane Tank Antitrust Litig. , 893 F.3d 1047, 1056 (8th Cir. 2018) (). A claim is facially plausible if supported by sufficient factual content to allow "the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.
"Although a moving party, for purposes of the Rule 12(c) motion, concedes the accuracy of the factual allegations in his adversary's pleading, he does not admit other assertions in the opposing party's pleading that constitute conclusions of law, legally impossible facts, or matters that would not be admissible in evidence at trial." 5C Arthur R. Miller, Mary Kay Kane, & A. Benjamin Spencer, Federal Practice & Procedure § 1368 (3d ed. 2004) (footnotes omitted). In deciding such a motion, the Court is "not bound to accept as true ‘[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,’ or legal conclusions couched as factual allegations." McDonough v. Anoka County , 799 F.3d 931, 945 (8th Cir. 2015) (alteration in original) (quoting Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ).
"Judgment on the pleadings ‘should be granted only if the moving party has clearly demonstrated that no material issue of fact remains and the moving party is entitled to judgment as a matter of law.’ " Partridge v. City of Benton , 929 F.3d 562, 564-65 (8th Cir. 2019) (quoting Whatley v. Canadian Pac. Ry. , 904 F.3d 614, 617-18 (8th Cir. 2018) ).
Doe's first cause of action alleges the defendants unlawfully discriminated against her based on her sex. "Title IX prohibits federally funded universities from discriminating against students on the basis of sex." Rossley v. Drake University , 979 F.3d 1184, 1191 (2020) (citing 20 U.S.C. § 1681(a) ). "[B]ut it has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals." Fitzgerald v. Barnstable Sch. Comm. , 555 U.S. 246, 257, 129 S.Ct. 788, 172 L.Ed.2d 582 (2009) ; accord Kinman v. Omaha Pub. Sch. Dist. , 171 F.3d 607, 611 (8th Cir. 1999) ().2
In addition, as the defendants point out, the Eighth Circuit has consistently held that "[a] suit against a government officer in [their] official capacity is functionally equivalent to a suit against the employing governmental entity." McKay v. City of St. Louis , 960 F.3d 1094, 1102 (8th Cir. 2020) (quoting Veatch v. Bartels Lutheran Home , 627 F.3d 1254, 1257 (8th Cir. 2010) ); see also Doe v. Univ. of Ark. - Fayetteville , 974 F.3d 858, 866 (8th Cir. 2020) (). Such a claim is properly "dismissed as redundant if the employing entity is also named." King v. City of Crestwood , 899 F.3d 643, 650 (8th Cir. 2018).
In light of these principles, Doe now concedes her Title IX claim "cannot succeed against the named Defendants"3 and "withdraws the First Cause of Action against the individually named Defendants."
Accordingly, the defendants’ motion is granted on this point. Doe's Title IX claims against Bounds, Green, Johnson, Counley, Strickman, and Pearce are dismissed in their entirety with prejudice. Doe's Title IX claim against the Board remains pending.
Doe's second cause of action arises under 42 U.S.C. § 1983. To state a claim under § 1983, "a plaintiff must plead that each Government-official defen...
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