United States District Court, S.D. Ohio, Western Division
WALTER H. RICE DECISION AND ENTRY SUSTAINING MOTION TO
DISMISS OF DEFENDANTS WRIGHT STATE UNIVERSITY AND CHRIS
TAYLOR (DOC #5) AS TO CLAIMS ONE THROUGH FOUR FOR LACK OF
SUBJECT MATTER JURISDICTION, SUSTAINING DEFENDANTS'
MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH
RELIEF CAN BE GRANTED (DOC. #5) AS TO CLAIM FIVE AND
OVERRULING DEFENDANTS' MOTION AS TO CLAIM SIX, SUBJECT TO
RENEWAL IF PLAINTIFFS CHOOSE TO FILE AN AMENDED COMPLAINT;
MOTION FOR LEAVE TO FILE AMENDED COMPLAINT OF PLAINTIFFS
DIEGO VENEGAS AND MARC SODINI (DOC #7) IS OVERRULED, AS
PLAINTIFFS HAVE NOT SET FORTH CLAIMS THAT WOULD SURVIVE A
MOTION TO DISMISS; PLAINTIFFS' CLAIMS TWO THROUGH FIVE
ARE DISMISSED WITH PREJUDICE, AND JUDGMENT SHALL ULTIMATELY
ENTER IN FAVOR OF DEFENDANTS AND AGAINST PLAINTIFFS ON THOSE
CLAIMS; PLAINTIFFS MAY FILE AN AMENDED COMPLAINT AS TO CLAIM
ONE WITHIN TWENTY-ONE DAYS OF THIS ENTRY SUBJECT TO THE
CONDITIONS SET FORTH HEREIN AND THE STRICTURES OF RULE 11; IF
PLAINTIFFS FAIL TO FILE A VIABLE AMENDED CLAIM ONE THEN THE
COURT WILL DISMISS CLAIM SIX WITHOUT PREJUDICE TO REFILING IN
A STATE COURT OF COMPETENT JURISDICTION
H. RICE, UNITED STATES DISTRICT JUDGE
Diego Venegas ("Venegas") and Marc Sodini
("Sodini") (collectively "Plaintiffs"),
former members of the Wright State University
("WSU") Men's Varsity Tennis Team
("Team"), allege WSU and Chris Taylor
("Taylor"), in his official capacity as the
Director of WSU's Office of Community Standards and
Student Conduct (collectively "Defendants"),
improperly removed them from the Team and terminated their
enrollment at WSU. Plaintiffs claim that Defendants violated
their rights under the First and Fourteenth Amendments to the
United States Constitution (claims brought under 42 U.S.C.
§1983); violated their rights under Title IX of the
United States Education Amendments of 1972, 20 U.S.C. §
1681 et. seq. ("Title IX"); and breached
their contracts with Plaintiffs. Doc. #1. Before the Court
are Defendants' Motion to Dismiss under Rules 12(b)(1)
and 12(b)(6), Doc. #5, and Plaintiffs' Motion for Leave
to Amend the Complaint ("Motion for Leave"). Doc.
#7. For the reasons set forth below, Defendant's Motion
to Dismiss is SUSTAINED IN PART AND OVERRULED IN PART, and
Plaintiffs' Motion for Leave is OVERRULED in its present
RELEVANT FACTUAL BACKGROUND
Facts related to Venegas
a Colombian national, was a WSU student and a member of the
Team from 2014 through 2016. Doc. #1, ¶¶ 10-12,
PAGEID #3. In January 2016, Venegas was informed that his
teammate, Tyler Smith ("Smith"), had filed a formal
complaint against him for violating the WSU Student Code of
Conduct ("Code") by "poking" him in the
rectum. Doc. #1, ¶¶ 16-17, PAGEID #3-4. In February
2016, a second teammate, Grant Esposito
("Esposito"), alleged that he, too, was poked by
Venegas. Id., ¶ 18, PAGEID #4. During the
investigation, Taylor "specifically and repeatedly
discouraged" Venegas from obtaining counsel.
Id., ¶ 19.
February 10, 2016, WSU's Gender-Based Harassment and
Violence Panel ("GBHVP") conducted a series of
hearings regarding alleged transgressions by Team members,
including Venegas. Doc. #1, ¶¶ 20-21, PAGEID #4.
Pursuant to Sections B7-3 and B2-1 of the Code, the GBHVP
found Venegas responsible for deliberate touching of
another's sexual parts without consent and hazing, and he
was expelled from WSU. Id. ¶¶ 25-26,
Facts related to Sodini
was a WSU student and Team member from 2012 through 2016.
Doc. #1, ¶¶ 29-30, PAGEID #6. In January 2016,
Smith and Esposito filed a formal complaint against Sodini
for the following alleged violations of the Code: (1)
"Deliberate touching of another's sexual parts
without consent;" (2) a "Bias related
incident;" (3) "Verbal harassment;" and (4)
"Hazing or similar act." Doc. #1, ¶¶ 36,
38, PAGEID #7, 8.
February 10, 2016, Sodini also had a hearing before the
GBHVP, at which he was found responsible for all four Code
violations. Subsequently, Sodini was removed from the Team
and expelled from WSU. Doc. #1, ¶ 49, PAGEID #10.
CLAIMS IN LAWSUIT
Claim One-Fourteenth Amendment Due Process
claim that they "have a protected liberty interest in
pursuing their education at WSU, " Doc. #1, ¶ 56,
PAGEID #11, and that "Venegas, as an international
student, has a protected property interest in his residency
status through his student visa, housing, and
scholarship!.]" Id., PAGEID #57. Plaintiffs
claim that Defendants removed them from the Team and expelled
them from WSU without notice and opportunities to be heard
that were commensurate with their liberty and property
interests. Id., ¶¶ 58, 80 PAGEID #12, 14.
Plaintiffs allege that these above-described actions violated
the Due Process Clause of the Fourteenth Amendment to the
United States Constitution. Id. ¶ 80, PAGEID
Claim Two-First Amendment
allege that Defendants prohibited them from speaking with
fellow students, including other Team members also under
investigation or with current and former employees of WSU,
prior to their hearings. Doc. #1, ¶ 83, PAGEID #15.
Also, Plaintiffs claim that the Defendants restricted their
rights to "freely speak with legal counsel or advisor(s)
of their choosing, whose advise [sic] was critical
to Plaintiffs' ability to defend" themselves.
Id., ¶ 84. Plaintiffs allege that these actions
violated their free speech and association rights guaranteed
by the First Amendment. Id., ¶
Claim Three-Fourteenth Amendment Equal
alleges that Defendants imposed higher penalties against him
in comparison to other accused Team members due to his
ethnicity, Hispanic, his country of origin, Colombia, and his
status as a non-permanent resident. Doc. #1, ¶¶
92-93, PAGEID #17. Venegas alleges that this disparate
treatment violated the Equal Protection Clause of the
Fourteenth Amendment. Id., ¶ 94.
Claim Four-Fourteenth Amendment Equal Protection-Venegas and
allege that Defendants failed to enforce the Code against all
parties involved in the alleged incident. Doc. #1, ¶
100, PAGEID #19. Specifically, Plaintiffs claim that
Defendants failed to investigate their claims that Smith and
Esposito themselves engaged in sexual assault and racial
harassment against them, and that Defendants failed to
"investigate, prosecute, or discipline" either
Smith or Esposito for these acts. Id., ¶
99-100, PAGEID #18-19. Plaintiffs allege that this violated
their equal protection rights under the Fourteenth Amendment.
Id., ¶ 101, PAGEID #19.
Claim Five-Title IX
allege that Defendants' failure to investigate their
accusations that they were victims of sexual misconduct
constituted "impermissible [sex-based] bias" in
violation of Title IX, which "bars the imposition of
university discipline where [sex] is a motivating factor in
the decision to discipline." Doc. #1, ¶¶ 107,
110, PAGEID #20.
Claim Six-Breach of Contract
allege that the Code constituted a contract between
Plaintiffs and the Defendants, arising out of each
Plaintiff's enrollment at WSU, Doc. #1, ¶¶ 114,
142, PAGEID #21, 25, and that Defendants' failure to
comply with the rules and obligations contained in and
arising out of the Code constituted breaches of those
contracts. Id., ¶ 145, PAGEID #25.
Specifically, Plaintiffs allege that Defendants breached the
Code when they: (1) failed to provide them with the same
opportunity as was afforded Smith and Esposito to present
their own allegations of misconduct; (2) discouraged them
from consulting with counsel regarding their alleged
offenses; (3) failed to address their allegations against the
complainants for misconduct; (4) prohibited them from
attending other hearings or from cross-examining Smith and
Esposito; and (5) improperly allowed the GBHVP to hear and
adjudicate their charges for hazing and inappropriate
touching. Doc. #1, ¶¶ 118, 125, 127, 139-140,
Motion for Leave
their memorandum in opposition to Defendant's Motion to
Dismiss, Plaintiffs request that this Court grant them leave
to amend their 42 U.S.C. § 1983 claims to include
allegations against Defendant Chris Taylor in both his
official and individual capacities, and a prayer for
declaratory and injunctive relief. Doc. #7, PAGEID #70
(citing Doc. #7-1). In addition, Plaintiffs seek leave to
include additional allegations to all of their claims.
Id., PAGEID #72-73.
objection that a federal court lacks subject-matter
jurisdiction may be raised by a party, or by
a court on its own initiative, at any stage in the
litigation." Arbaugh v. Y&H Corp., 546 U.S.
500, 506, 126 S.Ct. 1235, 163 L.Ed.2d 1097 (2006) (citing
Fed.R.Civ.P. 12(b)(1). "[T]he party invoking federal
jurisdiction has the burden to prove that [subject matter]
jurisdiction [exists]." Global Tech., Inc. v. Yubei
(XlnXiang) Power Steering Sys. Co., Ltd., 807 F.3d 806,
810 (6th Cir. 2015). If the Court determines that it lacks
jurisdiction over certain claims, then it must dismiss those
claims. See Ammex, Inc. v. Cox, 351 F.3d 697, 702
(6th Cir. 2003) (quoting Riggs v. Island Creek Coal
Co., 542 F.2d 339, 343 (6th Cir. 1976)) ("parties
cannot waive the requirement of subject matter
have raised a "facial attack on the subject matter
jurisdiction alleged in the complaint[, which] merely
questions the sufficiency of the pleading. In reviewing such
a facial attack, a trial court takes the allegations in the
complaint as true, which is a similar safeguard employed
under [Rule] 12(b)(6) motions to dismiss." Ohio
Nat'l Life Ins. Co. v. United States, 922 F.2d 320,
325 (6th Cir. 1990) (emphasis removed).
Rule of Civil Procedure 8(a) provides that a complaint must
contain "a short and plain statement of the claim
showing that the [plaintiff] is entitled to relief." The
complaint must provide the defendant with "fair notice
of what the . . . claim is and the grounds upon which it
rests." Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct.
99, 2 L.Ed.2d 80 (1957)).
12(b)(6) allows a party to move for dismissal of a complaint
on the basis that it "fail[s] to state a claim upon
which relief can be granted." The moving party "has
the burden of showing that the opposing party has failed to
adequately state a claim for relief." DirecTV, Inc.
v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007) (citing
Carver v. Bunch, 946 F.2d 451, 454-55 (6th Cir.
1991)). The purpose of a Rule 12(b)(6) motion to dismiss
"is to allow a defendant to test whether, as a matter of
law, the plaintiff is entitled to legal relief even if
everything alleged in the complaint is true." Mayer
v. Mylod, 988 F.2d 635, 638 (6th Cir. 1993). In ruling
on a Rule 12(b)(6) motion, the Court must "construe the
complaint in the light most favorable to the plaintiff,
accept its [well- pleaded] allegations as true, and draw all
reasonable inferences in favor of the plaintiff."
Handy-Clay v. City of Memphis, 695 F.3d 531, 538
(6th Cir. 2012) (quoting frees/7, 487 F.3d at 476).
to survive a Rule 12(b)(6) motion to dismiss, the complaint
must contain "enough facts to state a claim to relief
that is plausible on its face." Twombly, 550
U.S. at 570. Unless the facts alleged show that the
plaintiff's claim crosses "the line from conceivable
to plausible, [the] complaint must be dismissed."
Id. Although this standard does not require
"detailed factual allegations, " it does require
more than "labels and conclusions" or "a
formulaic recitation of the elements of a cause of
action." Id. at 555. "Rule 8 . . . does
not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions." Ashcroft v.
Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d
868 (2009). Legal conclusions "must be supported by
well-pleaded factual allegations . . . [that] plausibly give
rise to an entitlement of relief." Id. at 679.
"Although for the purposes of this motion to dismiss we
must take all the factual allegations in the complaint as
true, we are not bound to accept as true a legal conclusion
couched as a factual allegation." Papasan v.
Attain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d
Leave to Amend Standard
15(a)(2) directs courts to give leave to amend freely
"when justice so requires." Nonetheless, a court
need not grant leave to amend if doing so would be futile.
"A proposed amendment is futile if the amendment could
not withstand a Rule 12(b)(6) motion to dismiss."
Riverview Health Inst. LLC v. Med. Mut. of Ohio, 601
F.3d 505, 512 (6th Cir. 2010) (citation omitted).