Garrett v. Ohio State Univ.

Decision Date22 September 2021
Docket NumberCase No. 2:18-cv-692
Citation561 F.Supp.3d 747
Parties Brian GARRETT, et al., Plaintiffs, v. The OHIO STATE UNIVERSITY, Defendant.
CourtU.S. District Court — Southern District of Ohio

Debra Greenberger, New York, NY, Simina Vourlis, The Law Office of Simina Vourlis, Columbus, OH, Bernard Robert Allard, Pro Hac Vice, Corsiglia, McMahon & Allard, San Jose, CA, Daniel Richard Karon, Karon LLC, Cleveland, OH, Joseph G. Sauder, Pro Hac Vice, Sauder Schelkopf, Berwyn, PA, Larkin E. Walsh, Pro Hac Vice, Rex A. Sharp, Pro Hac Vice, Ryan C. Hudson, Pro Hac Vice, Sarah T. Bradshaw, Pro Hac Vice, Prairie Village, KS, Stephen J. Estey, Pro Hac Vice, Estey & Bomberger LLP, San Diego, CA, for Plaintiffs Brian Garrett, Edward Gonzales, John Antognoli, Roger Beedon, Dr. Mark Chrystal.

Simina Vourlis, The Law Office of Simina Vourlis, Columbus, OH, Bernard Robert Allard, Pro Hac Vice, Corsiglia, McMahon & Allard, San Jose, CA, Daniel Richard Karon, Karon LLC, Cleveland, OH, Joseph G. Sauder, Pro Hac Vice, Sauder Schelkopf, Berwyn, PA, Larkin E. Walsh, Pro Hac Vice, Rex A. Sharp, Pro Hac Vice, Ryan C. Hudson, Pro Hac Vice, Sarah T. Bradshaw, Pro Hac Vice, Prairie Village, KS, Stephen J. Estey, Pro Hac Vice, Estey & Bomberger LLP, San Diego, CA, for Plaintiffs Kent Kilgore, Adam Plouse, Daniel Ritchie, Michael Schyck, John Shepard, Joel Davis, John Does 1-2, 4-15, 17, 19, 21-33, and 35-92.

J.C. Ratliff, Rocky Jay Ratliff, Ratliff Law Office, Marion, OH, for Plaintiffs Michael Canales, John Doe 20.

Michael Hiram Carpenter, David John Barthel, Jennifer A. L. Battle, Timothy R. Bricker, Carpenter Lipps & Leland LLP, Columbus, OH, for Defendant.

OPINION AND ORDER

MICHAEL H. WATSON, JUDGE

Plaintiffs sue The Ohio State University ("Ohio State") under Title IX, 20 U.S.C. § 1681, alleging Ohio State was deliberately indifferent to the sexual abuse Plaintiffs suffered at the hands of Doctor Richard Strauss ("Strauss"). Consol. Compl., ECF No. 157. Ohio State moves to dismiss Plaintiffs’ claim under Federal Rule of Civil Procedure 12(b)(6) as barred by the applicable statute of limitations. Mot. Dismiss, ECF No. 162.

I. INTRODUCTION

It is beyond dispute that Plaintiffs, as well as hundreds of other former students, suffered unspeakable sexual abuse by Strauss. It is also true that many Plaintiffs and other students complained of Strauss's abuse over the years and yet medical doctors, athletic directors, head and assistant coaches, athletic trainers, and program directors failed to protect these victims from Strauss's predation. For decades, many at Ohio State tasked with protecting and training students and young athletes instead turned a blind eye to Strauss's exploitation. From 1979 to 2018, Ohio State utterly failed these victims.

Plaintiffs beseech this Court to hold Ohio State accountable, but today, the legal system also fails Plaintiffs. Plaintiffs’ pain and suffering is neither questioned nor overlooked by this Court; indeed, their claims cry out for a remedy. As explained below, PlaintiffsTitle IX claims are barred by the existing statute of limitations. If there is a viable path forward for Plaintiffs on their claim against Ohio State, it starts with the legislature rather than the judiciary.

II. FACTS1

Plaintiffs are all former Ohio State students and student-athletes. Compl. ¶ 33, ECF No. 157. Ohio State is and was at all relevant times a state-owned and -operated public university that received federal financial assistance. Id. ¶ 134.

All of Plaintiffs’ causes of action arise from Strauss's sexual abuse that they endured while at Ohio State.2 Id. , passim.

III. STANDARD OF REVIEW

A claim survives a motion to dismiss under Rule 12(b)(6) if it "contain[s] 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) (citation omitted). "The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (citation omitted). This standard "calls for enough fact to raise a reasonable expectation that discovery will reveal evidence of [unlawful conduct]." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A pleading's "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the [pleading] are true (even if doubtful in fact)." Id. at 555, 127 S.Ct. 1955 (internal citations omitted). While the court must "construe the [pleading] in the light most favorable to the [non-moving party]," Inge v. Rock Fin. Corp. , 281 F.3d 613, 619 (6th Cir. 2002), the non-moving party must provide "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ; see also Iqbal , 556 U.S. at 678, 129 S.Ct. 1937.

IV. ANALYSIS
A. Background of Title IX

Title IX of the Education Amendments of 1972 is a federal statute designed to prevent sexual discrimination and harassment in educational institutions receiving federal funding. It provides: "[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educational program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).

Although the text of the statute does not mention a private right of action, Title IX implies a private right of action, Cannon v. Univ. of Chicago , 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), which "encompasses intentional sex discrimination in the form of a recipient's deliberate indifference to a teacher's sexual harassment of a student." Jackson v. Birmingham Bd. of Edu. , 544 U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (citing Franklin v. Gwinnett Cty. Pub. Schs. , 503 U.S. 60, 72–73, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) and Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290–91, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) ).

To prove a deliberate indifference3 claim under Title IX, the plaintiff must "plead, and ultimately prove, that the school had actual knowledge of actionable sexual harassment and that the school's deliberate indifference to it resulted in further actionable sexual harassment against the student-victim, which caused the Title IX injuries."4 Kollaritsch v. Mich. State Univ. Bd. of Trustees , 944 F.3d 613, 618 (6th Cir. 2019). In other words, the plaintiff must establish "two separate components, comprising separate-but-related torts by separate-and-un related tortfeasors: (1) ‘actionable harassment’ by [someone associated with the school]; and (2) a deliberate-indifference intentional tort by the school." Id. at 619–20 ; see also Davis v. Monroe Cty. Bd. of Edu. , 526 U.S. 629, 633, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999) ; Foster v. Bd. of Regents of Univ. of Mich. , 982 F.3d 960, 965 (6th Cir. 2020).

The actionable sexual harassment must be "so severe, pervasive, and objectively offensive that it effectively bars the victim's access to an educational opportunity or benefit." Foster , 982 F.3d at 965 (quoting Davis , 526 U.S. at 633, 119 S.Ct. 1661 ).

To prove the deliberate indifference tort, the plaintiff must show four elements: "(1) knowledge, (2) an act, (3) injury, and (4) causation." Kollaritsch , 944 F.3d at 621. First, the plaintiff must show that the school had "actual knowledge of an incident of actionable sexual harassment that prompted or should have prompted a response." Id. Second, the plaintiff must show that the school's response was " ‘clearly unreasonable in light of the known circumstances,’ thus demonstrating the school's deliberate indifference to the foreseeable possibility of further actionable harassment of the victim." Id. (quoting Davis , 526 U.S. at 648, 119 S.Ct. 1661 ). Third and fourth, the school's unreasonable response must cause the specific injury of "deprivation of access to the educational opportunities or benefits provided by the school .... Emotional harm standing alone is not a redressable Title IX injury." Id. The causation and injury elements are met if the "injury is attributable to the post-actual-knowledge further harassment, which would not have happened but for the clear unreasonableness of the school's response." Id. at 622 (citing Davis , 526 U.S. at 644, 119 S.Ct. 1661 ).

Before reaching the merits of any Title IX claim, however, the Court must determine whether the claim is barred by the statute of limitations.

B. Title IX Statute of Limitations

As a threshold matter, the Court clarifies that statute-of-limitations defenses may be properly raised in a Rule 12(b)(6) motion. See Gibson v. Am. Bankers Ins. Co. , 289 F.3d 943, 946 (6th Cir. 2002) ; Allen v. Andersen Windows, Inc. , 913 F. Supp. 2d 490, 500 (S.D. Ohio 2012) ("Dismissal under Fed. R. Civ. P. 12(b)(6) based on a statute-of-limitations bar is appropriate when the complaint shows conclusively on its face that the action is indeed time-barred.").

"Title IX does not contain its own statute of limitations." Lillard v. Shelby Cty. Bd. of Educ. , 76 F.3d 716, 728 (6th Cir. 1996). Title IX actions, therefore, borrow the state statute of limitations for personal injuries. Id. at 729. Ohio Revised Code § 2305.10 provides for a two-year statute of limitations for personal injury claims. Ohio Rev. Code § 2305.10. Accordingly, Title IX claims in Ohio have a two-year statute of limitations. See Adams v. Ohio Univ. , 300 F. Supp. 3d 983, 996 (S.D. Ohio 2018).

Although state law controls the duration of the statute of limitations, federal law governs when the claim accrues. Sharpe v. Cureton , 319 F.3d 259, 266 (6th Cir. 2003). "The ‘standard rule’ is that a cause of action accrues ‘when the plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and obtain...

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