United States District Court, S.D. Ohio, Western Division
AND ENTRY SUSTAINING PLAINTIFF'S MOTION TO STRIKE
PORTIONS OF DEFENDANT'S MOTION TO DISMISS PLAINTIFF'S
COMPLAINT (DOC. #10); SUSTAINING IN PART AND OVERRULING IN
PART DEFENDANT WRIGHT STATE UNIVERSITY'S MOTION TO
DISMISS PLAINTIFF'S COMPLAINT (DOC. #5); PLAINTIFF MAY
FILE MOTION FOR LEAVE TO FILE AMENDED COMPLAINT WITHIN 30
H. RICE, UNITED STATES DISTRICT JUDGE
Carolyn Joyce filed suit against Wright State University
("WSU"), alleging violations of Title IX of the
Education Amendments of 1972 ("Title IX"). Title IX
prohibits institutions receiving federal funding from
engaging in sex-based discrimination. 20 U.S.C. §
1681(a). Joyce's claims arise out of a sexual assault by
a fellow student, Myron Walker. She maintains that WSU
exhibited deliberate indifference to the threat posed by
Walker, creating a hostile environment that limited her
ability to participate in WSU's educational programs.
This matter is currently before the Court on two pending
motions: (1) Defendant WSU's Motion to Dismiss
Plaintiff's Complaint, Doc. #5; and (2) Plaintiff's
Motion to Strike Portions of Defendant's Motion to
Dismiss, Doc. #10.
Background and Procedural History
Carolyn Joyce was a student at WSU during the fall semester
of 201 5. The Complaint alleges that, on November 8, 2015,
Myron Walker, a fellow student, sexually assaulted her in the
dormitory where they both lived. She reported the incident to
WSU and sought medical treatment the following day.
November 12th, Walker was summarily suspended and instructed
to leave campus after the Greene County courts issued a
restraining order. A disciplinary hearing, held on November
19, 2015, involved not only Joyce's claim of sexual
assault, but reports by several other female students that
they too had been sexually assaulted or sexually harassed by
Walker on WSU's campus. On November 20, 2015, Walker was
expelled from the university and forbidden from returning to
campus for any reason.
in the following weeks, it appears that Walker returned to
campus on at least two occasions. Over Thanksgiving break,
Joyce learned from another student that Walker had been back
on campus. Then, on December 16th or 17th, Joyce contacted
the WSU Police after discovering, through a social media
posting, that Walker was currently on campus. Although the
police came to her dorm room to investigate, they said that
there was nothing that they could do. No. report was filed
and no further action was taken.
to Joyce, Katie Deedrick, an employee and representative of
WSU, who knew of the sexual assault, was also aware that
Walker had returned to campus after being expelled. Joyce
alleges that she no longer felt safe on campus. She withdrew
from classes and, although she applied for a tuition refund
for the spring semester, none was given. She has been
receiving psychological treatment since the assault, and has
been unable to further her education elsewhere.
filed suit on November 6, 2017, alleging violations of Title
IX. Doc. #1. She alleges that WSU knew of Walker's high
school history of sexual misconduct, and of Walker's
assaults on other females on WSU's campus. She maintains
that WSU was deliberately indifferent in allowing Walker to
enroll at WSU, and in failing to protect its students from
respect to her own sexual assault, Joyce alleges that WSU was
deliberately indifferent in failing to take interim measures
to protect her from further incidents, allowing Walker to
remain on campus for three days after she reported the rape.
In addition, she alleges that WSU was deliberately
indifferent in failing to enforce its order prohibiting
Walker from returning to campus, thereby rendering her
vulnerable to additional sexual assaults or harassment.
December 18, 2017, WSU filed a Motion to Dismiss
Plaintiff's Complaint, Doc. #5, pursuant to Federal Rule
of Civil Procedure 12(b)(1) and 12(b)(6). It argues that
Joyce's allegations fail to state a plausible claim of
deliberate indifference under Title IX, that Joyce lacks
standing to pursue certain claims, and that some claims are
barred by the statute of limitations.
to WSU's motion were three exhibits: (1) an affidavit of
Gary Dickstein, WSU's former Assistant Vice President for
Student Affairs; (2) Dickstein's November 12, 2015, order
prohibiting Walker from having any contact with Joyce; and
(3) Dickstein's November 12, 2015, letter suspending
Walker based on allegations of sexual misconduct and
prohibiting him from being present on campus without
permission and an escort. Doc. #5-1, PageID##25-27.
then filed her Memorandum in Opposition to Defendant's
Motion to Dismiss, Doc. #9, along with a Motion to Strike
Portions of Defendant's Motion to Dismiss Plaintiff's
Complaint, Doc. #10. Both motions are fully briefed and ripe
Plaintiff's Motion to Strike (Doc. #10)
has moved to strike the three exhibits attached to
Defendant's Motion to Dismiss, Doc. #5, and any
references to them. Doc. #10. Federal Rule of Civil Procedure
12(d) states, in relevant part, "[i]f, on a motion under
Rule 12(b)(6) or 12(c), matters outside the pleadings are
presented to and not excluded by the court, the motion must
be treated as one for summary judgment under Rule 56."
Nevertheless, the court may consider exhibits attached to a
motion to dismiss, without treating it as a motion for
summary judgment, as long as the exhibits "are referred
to in the Complaint and are central to the claims contained
therein." Bassett v. National Collegiate Athletic
Ass'n, 528 F.3d426, 430 (6th Cir. 2008).
case, the exhibits at issue are not mentioned in the
Complaint. Nor can it be said that they are "central
to" Joyce's claims, such as a contract might be in a
breach of contract action. Rather, the exhibits are submitted
by WSU to counter Joyce's allegation that WSU
"failed to issue any interim measures to protect Joyce,
and to provide her with a safe environment." Doc. #1,
PageID#6. WSU argues that the exhibits show that, within days
after receiving notice of the sexual assault, it
"prohibited Walker from having any contact with
Plaintiff, summarily suspended Walker and, following a
disciplinary hearing, expelled him from the University."
Doc. #5, PageID#17. According to WSU, disallowing
consideration of the no-contact order and the summary
suspension -which are clearly "interim measures"-
would entitle Joyce "to rely on a revisionist history to
support a legally and factually deficient claim which she is
not permitted to do." Id. at PageID##17-18 n.1
(citing Weiner v. Klais & Co., Inc., 108 F.3d
86, 89 (6th Cir. 1997)).
points out, however, that, rather than contradict
her allegations, these exhibits actually support her
argument that WSU waited three entire days after she reported
the rape before taking any action to protect her from Walker.
Her Complaint expressly alleges that "Walker was
permitted to remain in the Hawthorn Hall dormitory, until
either November 11th or November 12th, after a restraining
order was issued by the Green[e] County courts." Doc.
Court finds that the exhibits at issue do not fall within
that narrow class of documents that may be considered without
converting a motion to dismiss into a motion for summary
judgment. They are not referred to in the Complaint and are
not central to Joyce's claims. Nor are they the kinds of
documents that would allow Joyce to salvage an otherwise
"legally and factually deficient claim" simply by
failing to attach them. See Weiner, 108 F.3d at 89.
Accordingly, the Court SUSTAINS Plaintiff's Motion to
Strike Portions of Defendant's Motion to Dismiss
Plaintiff's Complaint, Doc. #10. It will not consider the
exhibits or Defendant's references to them in ruling on
the Motion to Dismiss.
Defendant's Motion to Dismiss (Doc. #5)
IX provides that "[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 education program or activity
receiving Federal financial assistance." 20 U.S.C.
§ 1681(a). This statute encompasses sexual harassment
that creates an environment so hostile "that it
effectively bars the victim's access to an educational
opportunity or benefit, " Davis ex re/. LaShonda D.
v. Monroe Cty. Bd. of Educ, 526 U.S. 629, 633 (1999).
"[Recipients of federal funding may be liable for
'subject[ingj' their students to discrimination where
the recipient is deliberately indifferent to known acts of
student-on-student sexual harassment and the harasser is
under the school's disciplinary authority."
Id. at 646-47.
order to succeed on a Title IX claim of student-on-student
sexual harassment, a plaintiff must prove the following:
(1) sexual harassment so severe, pervasive, and objectively
offensive that it could be said to deprive the plaintiff of
access to the educational opportunities or benefits provided
by the school, (2) the funding recipient had actual knowledge
of the sexual harassment, and (3) the funding recipient was
deliberately indifferent to the harassment.
Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834,
848 (6th Cir. 201 6).
concedes that Joyce's allegation that she was sexually
assaulted by Myron Walker is sufficiently severe to satisfy
the first element. Accordingly, only the second and third
elements are at issue. "Actual knowledge requires only
that a single school administrator with authority to take
corrective action had actual knowledge of the sexual
harassment." Id. (citing Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)).
"deliberate indifference" standard sets a
"high bar" for recovery. Title IX "requires
only that school administrators respond to known peer
harassment in a manner that is not 'clearly unreasonable
in light of the known circumstances.'" Id.
(quoting Davis, 526 U.S. at 648). Typically, whether
school officials acted with deliberate indifference is a
question of fact to be resolved by the jury after considering
all relevant evidence; nevertheless, the Supreme Court has
held that, "[i]n an appropriate case, " a court may
determine that a school's response was not
"'clearly unreasonable' as a matter of
law." Davis, 526 U.S. at 649.