Kollaritsch v. Mich. State Univ. Bd. of Trs.

• Decision Date: 02 November 2017
• Docket Number: No. 1:15–cv–1191,1:15–cv–1191
• Citation: 298 F.Supp.3d 1089
• Parties: Emily KOLLARITSCH, Shayna Gross, Jane Roe 1 and Jane Roe 2, Plaintiffs, v. MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES, et al., Defendants.
• Court: U.S. District Court — Western District of Michigan

298 F.Supp.3d 1089

Emily KOLLARITSCH, Shayna Gross, Jane Roe 1 and Jane Roe 2, Plaintiffs,

v.MICHIGAN STATE UNIVERSITY BOARD OF TRUSTEES, et al., Defendants.

No. 1:15–cv–1191

United States District Court, W.D. Michigan, Southern Division.

Signed November 2, 2017

Jennifer B. Salvatore, Salvatore Prescott, PLLC, Northville, MI, Alexander Solomon Zalkin, The Zalkin Law Firm, P.C., San Diego, CA, for Plaintiff.

Kristin Hynd Jones, Michael Edward Baughman, Pepper Hamilton LLP (Philadelphia), Philadelphia, PA, Matthew J. Lund, Pepper Hamilton LLP (Southfield), Southfield, MI, Robert Terrence Kent, Michigan State University Office of the General Counsel, East Lansing, MI, for Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS

Paul L. Maloney, United States District Judge

Plaintiffs are four women who allege they were sexually harassed or assaulted by other students while they were students at Michigan State University (MSU). Each plaintiff alleges she reported the assault to the MSU, which did not adequately respond. Plaintiffs assert claims for violations of Title IX and Michigan's Elliott–Larsen Civil Rights Act (ELCRA). Through § 1983, Plaintiffs also assert claims for violations of their constitutional rights to Due Process and Equal Protection.¹ Defendants filed a motion to dismiss. (ECF No. 28.) The Court held a hearing on the motion.

The motion will be granted in part and denied in part. Plaintiffs have conceded several of the claims, including the violations of Due Process and violations of the ELCRA. The Title IX claim brought by Jane Roe 2 will be dismissed, as the allegations in the complaint do not establish deliberate indifference. Plaintiffs' Equal Protection claim against MSU Board of Trustees has been withdrawn, and the motion will be granted for the Equal Protection claims against Defendants Simon and Youatt. The complaint does not allege sufficient facts to show how those individuals violated the constitutional rights of any of the plaintiffs.

I.

At the outset, the Court must clarify the individual defendants in this case. In the caption for the initial complaint, Plaintiffs named the Michigan State University Board of Trustees (Trustees); Lou Anna Simon, the president of the university; and Denise Maybank, the vice president of student affairs. With leave of the Court, Plaintiffs filed an amended complaint, which is the controlling pleading. (ECF No. 25.) Plaintiffs did not alter the caption, but did add defendants. In the "Parties and Jurisdiction" portion of the complaint, Plaintiffs named Trustees (Compl. ¶ 1), Maybank (id. ¶ 2), and Simon (id. ¶ 3). As a defendant, Plaintiffs added June Pierce Youatt, the acting Provost, or the Provost and Executive Vice President for Academic Affairs. (Id. ¶ 4.) Plaintiffs also added Paulette Granberry Russell, who at "all times relevant was MSU's appointed Title IX Coordinator." (Id. ¶ 5.) Plaintiffs have not requested any additional summonses since their initial complaint was filed. Defendants Youatt and Russell made appearances in this lawsuit when the motion to dismiss was filed on their behalf.

In the portion of the complaint where Plaintiffs identify and outline their causes of action, Plaintiffs list the defendants against which each claim is brought as part of the heading and also identify the defendants within the claim itself. Count 1 is Plaintiffs' claim for violations of Title IX, and is brought against Defendant Trustees only. (Compl. PageID.257–58.) Count 3 is Plaintiffs' claim for violations of the ELCRA, and is brought against Defendant Trustees only. (Id. PageID. 359–60.)

The confusion about the individual defendants arises in Count 2, Plaintiffs' constitutional claims. (Compl. PageID.258–59.) Plaintiffs name as the defendants for this count the Trustees, Maybank, Simon and Youatt. Plaintiffs also name as a defendant Amanda Garcia–Williams. In paragraph 32 of the complaint, Plaintiffs identify Garcia–Williams as MSU's Title IX Coordinator, the same position held by Russell "at all times relevant." Then, in paragraph 84, Plaintiffs describe Russell as the Senior Advisor to the President for Diversity and as the Director of the Office of Inclusion and Intercultural Initiatives. Plaintiffs also describe Russell as Garcia–Williams's supervisor. (Id. ¶ 84.) Garcia–Williams is mentioned in the factual allegations for each of the individual plaintiff's claims.

Based on this brief summary, the Court reaches two conclusions. First, Plaintiffs have not asserted a claim against Defendant Paulette Russell. Plaintiffs do not identify Russell as a defendant for any of their counts.² There is no claim for which Russell must file an answer. The confusion about Russell's title does not affect this conclusion. Second, Garcia–Williams is not currently a named defendant in this lawsuit. Plaintiffs did not identify Garcia–Williams as a defendant in the "Parties and Jurisdiction" portion of their complaint. Plaintiffs have never requested a summons for Garcia–Williams. Garcia–Williams has not made an appearance in this lawsuit. This Court does not currently have personal jurisdiction over Garcia–Williams.

II.

Defendant filed a motion to dismiss, relying on Rule 12(b)(6) of the Federal Rules of Civil Procedure. Under the notice pleading requirements, a complaint must contain a short and plain statement of the claim showing how the pleader is entitled to relief. Fed. R. Civ. P. 8(a)(2) ; see Thompson v. Bank of America, N.A. , 773 F.3d 741, 750 (6th Cir. 2014) (holding that to survive a Rule 12(b)(6) motion, the complaint "must comply with the pleading requirements of Rule 8(a)."). The complaint need not contain detailed factual allegations, but it must include more than labels, conclusions, and formulaic recitations of the elements of a cause of action. Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A defendant bringing a motion to dismiss for failure to state a claim under Rule 12(b)(6) tests whether a cognizable claim has been pled in the complaint. Scheid v. Fanny Farmer Candy Shops, Inc. , 859 F.2d 434, 436 (6th Cir. 1988).

To survive a motion to dismiss, "[t]he complaint must ‘contain either direct or inferential allegations respecting all material elements necessary for recovery under a viable legal theory.’ " Kreipke v. Wayne State Univ. , 807 F.3d 768, 774 (6th Cir. 2015) (citation omitted). The plaintiff must provide sufficient factual allegations that, if accepted as true, are sufficient to raise a right to relief above the speculative level. Twombly, 550 U.S. at 555, 127 S.Ct. 1955. And the claim for relief must be plausible on its face. Id. at 570, 127 S.Ct. 1955. "A claim is plausible on its face if the ‘plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.’ " Ctr. for Bio–Ethical Reform, Inc. v. Napolitano , 648 F.3d 365, 369 (6th Cir. 2011) (quoting Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citations omitted). When considering a motion to dismiss, a court must accept as true all factual allegations, but need not accept any legal conclusions. Ctr. for Bio–Ethical Reform, 648 F.3d at 369. Naked assertions without further factual enhancement, formulaic recitations of the elements of a cause of action, and mere labels and conclusions will be insufficient for a pleading to state a plausible claim. SFS Check, LLC v. First Bank of Delaware , 774 F.3d 351, 355 (6th Cir. 2014) (citations omitted).

III.

For this motion, all well-pled factual allegations are assumed to be true. Plaintiffs describe the events giving rise to the claims brought by all four students.

A. Plaintiff Kollaritsch

John Doe attempted to rape Plaintiff Kollaritsch in his dormitory room in October 2011. (Compl. ¶ 28.) On October 15, John Doe sexually assaulted Kollaritsch in the stands at an MSU football game. (Id. ¶ 29). Kollaritsch reported the assaults to the MSU Police on January 30, 2012. (Id. ¶ 30.) On February 3, Kollaritsch met with Garcia–Williams to formally commence an investigation against John Doe by MSU. (Id. ¶ 32.) While the investigation was occurring, MSU did not restrict John Doe or accommodate Kollaritsch so that she would not encounter John Doe. (Id. ¶ 33.) Sometime in August, some 200 days later, Kollaritsch received the Investigation Report from MSU. (Id. ¶ 37.) The report concluded that John Doe violated the MSU Sexual Harassment Policy, but did not identify the specific policies or provisions that were violated. (Id. ¶ 39.) The report did not conclude that John Doe sexually assaulted Kollaritsch. John Doe accepted responsibility (id. ¶ 41), and, on November 13, 2012, was placed on probationary status, and was issued a no-contact order (id. ¶ 44). Garcia–Williams did not inform Kollaritsch that she had a right to appeal the sanction. (Id. ¶ 45.)

John Doe thereafter violated the no-contact order and began stalking, harassing, and otherwise intimidating Kollaritsch. (Compl. ¶¶ 47–48.) After reporting his conduct in February, on March 11, 2013, Kollaritsch filed a formal complaint with MSU about John Doe's retaliatory harassment. (Id. 50 and 53.) On March 13, Kollaritsch sought a Personal Protection Order against John Doe in the East Lansing District Court, which was issued the next day. (Id. ¶ 55.) In May 2013, Garcia–Williams issued a report concluding that John Doe had not retaliated against Kollaritsch and had not further violated MSU's Code of Conduct. (Id. ¶ 58.) Kollaritsch was not informed that she could appeal the conclusions. (Id. ¶ 59.) Between June and August, Kollaritsch pressed the matter with MSU, complaining that the investigation was inadequate. (Id. ¶¶ 60–65.)

B. Plaintiff...