Opinion
Civil Action No.: 4:17-cv-3484-RBH-TER
11-30-2018
OLUWASEGUN ISRAEL ISIOYE, Plaintiff, v. COASTAL CAROLINA UNIVERSITY, DAVID DeCENZO, TRIVAS OVERTON, PRESTON McEVER FLOYD, SGT. DAVID KLAUDER, DEPUTY CHIEF RODNEY BROCK, and CAPTAIN CHARLES RODNEY SESSIONS, Defendants.
REPORT AND RECOMMENDATION
I. INTRODUCTION
Plaintiff, who is proceeding pro se, brings this action alleging sexual assault and battery, discrimination, retaliation, excessive harassment, false imprisonment, and invasion of privacy, which occurred while he was a student at Coastal Carolina University in May of 2015. Presently before the court is a Motion to Dismiss (ECF No. 35) filed by Defendants Coastal Carolina University (CCU), Rodney Brock, David DeCenzo, David Klauder, Trivas Overton, and Charles Rodney Session. Because Plaintiff is proceeding pro se, he was advised pursuant to Roseboro v. Garrison, 528 F.3d 309 (4th Cir. 1975), that a failure to respond to the moving Defendants' motion could result in dismissal of his case. Plaintiff timely filed a response (ECF No. 48). All pretrial proceedings in this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 73.02(B)(2)(e), DSC. This report and recommendation is entered for review by the district judge.
Counsel for these Defendants assert that they do not represent Preston McEver Floyd. Floyd has not made an appearance in this action. A "Process Receipt and Return" (ECF No. 33) indicates that he was served by the United States Marshals Service on March 27, 2018, by service on Timothy E. Meacham, University Counsel. No motion has been raised by any party with respect to this Defendant.
II. FACTUAL ALLEGATIONS
Plaintiff alleges he was sexually assaulted by a professor, Defendant Preston McEver Floyd, who drove Plaintiff to his residence on a false pretense in May of 2015. Floyd also sent nude pictures and explicit text messages to Plaintiff. Plaintiff notified the Dean of Student Affairs and the public safety department. Defendant Captain Charles Rodney Sessions told Plaintiff he would be pursuing criminal charges. The school authority told Plaintiff that CCU counsel was going to conduct a panel hearing, but the hearing never occurred. Plaintiff alleges CCU blocked his access to his personal email account for a week and accessed his email and deleted incriminating evidence. The President of CCU offered Plaintiff $7,500 as hush money and told him to withdraw from school, which Plaintiff rejected. Plaintiff alleges injuries of emotional distress, mental anguish, severe depression and anxiety, and needing counseling. Plaintiff seeks a refund of his full tuition amount or the opportunity to get his degree. He also seeks punitive damages. See Am. Compl. (ECF No. 22).
III. STANDARD OF REVIEW
Defendants seek dismissal of Plaintiff's claims pursuant to Rule 12(b)(6), Fed.R.Civ.P. A Rule 12(b)(6) motion examines whether Plaintiff has stated a claim upon which relief can be granted. The United States Supreme Court has made clear that, under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. See Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The reviewing court need only accept as true the complaint's factual allegations, not its legal conclusions. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555.
Expounding on its decision in Twombly, the United States Supreme Court stated in Iqbal:
[T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the defendant-unlawfully-harmed-me accusation. A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement."Iqbal, 556 U.S. at 677-78 (quoting Twombly, 550 U.S. at 555, 556, 557, 570) (citations omitted); see also Bass v. Dupont, 324 F.3d 761, 765 (4th Cir.2003).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.
IV. DISCUSSION
As stated above, Plaintiff asserts causes of action for sexual assault and battery, discrimination, retaliation, excessive harassment, false imprisonment, and invasion of privacy. Defendants argue that Plaintiff fails to state a claim as to any of these causes of action. In his response, Plaintiff clarifies that he alleges causes of action for sexual assault, battery, and sexual harassment only against Floyd. He also states in his response that he brings his claims pursuant to Title IX.
A. Eleventh Amendment Immunity
Coastal Carolina University is entitled to Eleventh Amendment immunity on all claims except for those under Title IX. The Eleventh Amendment provides that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State or by Citizens or Subjects of any Foreign State." U.S. Const., amend. XI. "The ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court." Board of Trustees of Univ. of Alabama v. Garrett, 531 U.S. 356, 363, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (citations omitted). Eleventh Amendment immunity extends not only to the states as such but also to state agencies and organizations that function as an "arm of the state." Mt. Healthy City School Dist. Bd. of Educ'n v. Doyle, 429 U.S. 274, 280, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977). Coastal Carolina University is a statutorily designated state institution. S.C. Code Ann. § 59-101-10. Public state universities are arms of the state. Maryland Stadium Auth. v. Ellerbe Becket, Inc., 407 F.3d 255 (4th Cir. 2005). Accordingly, CCU is immune from suit in federal court under the Eleventh Amendment unless it waives its immunity—which it expressly has not done—or Congress abrogates its immunity. See Lapides v. Board of Regents, 535 U.S. 613 (2002) (noting that a State may waive sovereign immunity); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,(1993) (stating that absent waiver of Eleventh Amendment immunity, "neither a State nor agencies acting under its control may be subject to suit in federal court") (quotations and citations omitted); S.C. Code Ann. § 15-78-20(e) (expressly stating that the State of South Carolina does not waive sovereign immunity from suit in federal court); DeCecco v. Univ. of S.C., 918 F. Supp. 2d 471, 498 (D.S.C. 2013) (noting that even if the South Carolina Tort Claims Act would allow a claim to proceed in state court, it would not allow it to proceed in federal court). However, acceptance of Title IX funding amounts to a waiver of Eleventh Amendment immunity for Title IX suits. Litman v. George Mason Univ., 186 F.3d 544, 553 (4th Cir. 1999). Therefore, CCU is entitled to Eleventh Amendment Immunity on all claims except for Plaintiff's claims under Title IX.
B. Discrimination, Retaliation, and Excessive Harassment
Plaintiff's claims of discrimination, retaliation, and excessive harassment fall under Title IX. Under Title IX, "[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 prohibition encompasses sexual harassment of a student by a teacher and is enforceable through a judicially implied private right of action for damages against a publically supported university. See Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60, 75-76, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992). It also prohibits retaliation. Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173-84, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005) (discussing the implied right of action under Title IX for retaliation). However, Title IX "has consistently been interpreted as not authorizing suit against school officials, teachers, and other individuals" because individuals are not the recipients of federal funds. Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 257 (2009). Therefore, any claims against Rodney Brock, David DeCenzo, David Klauder, Trivas Overton, Charles Rodney Session, and Preston McEver Floyd for discrimination, retaliation, or harassment under Title IX should be dismissed.
Even though Floyd has not made an appearance, the same legal analysis holds true for him and, thus, dismissal of these claims against him is appropriate.
Coastal Carolina University argues that the statute of limitations for Title IX claims is one year and, thus, any of Plaintiff's claims arising against CCU more than one year prior to the filing date of the present case are barred by the statute of limitations. Title IX does not contain a limitations period for bringing an action. Martin v. Clemson Univ., 654 F. Supp. 2d 410, 429 (D.S.C. 2009). When this occurs, the Supreme Court has "'generally concluded that Congress intended that the courts apply the most closely analogous statute of limitations under state law.'" Reed v. United Transp. Union, 488 U.S. 319, 323-24, 109 S.Ct. 621, 102 L.Ed.2d 665 (1989) (quoting DelCostello v. Int'l Bhd. of Teamsters, 462 U.S. 151, 158, 103 S.Ct. 2281, 76 L.Ed.2d 476 (1983)). Defendants cite to Moore v. Greenwood School District No. 52, 195 Fed.Appx. 140, 143, 2006 WL 2385268, **2 (4th Cir. 2006), in which the Fourth Circuit held in an unpublished opinion that the most analogous limitations period for Title IX actions in South Carolina is the South Carolina Human Affairs Law (SCHAL), which provides a one year statute of limitations. Moore involved a basketball coach and math teacher who was relieved of his coaching duties, he alleged, in retaliation for supporting parents who complained to the Office of Civil Rights of the United States Department of Education that the defendant school district discriminated against female athletes. Id. at The Fourth Circuit affirmed the district court's holding that the applicable statute of limitations for the plaintiff's Title IX claim was one year, reasoning that the plaintiff's allegations were similar to employment discrimination claims raised under the South Carolina Human Affairs Law, which has a one year statute of limitations. Id. at **2 (citing S.C. Code Ann. § 1-13-90); see also Martin, 654 F. Supp. 2d at 429 (relying on Moore in applying a one year statute of limitations to a Title IX claim by a professor against her employer, Clemson University).
Less than a year later, although the applicable statute of limitations was not at issue, the Fourth Circuit noted in a footnote that "every circuit to consider the issue had held that Title IX[, like § 1983,] borrows the relevant state's statute of limitations for personal injury." Wilmink v. Kanawha County Bd. of Educ., 214 Fed.Appx. 294, 296 n.3, 2007 WL 173718, *1 n.3 (4th Cir. Jan. 17, 2007) (citing Stanley v. Trustees of California State Univ., 433 F.3d 1129, 1134 (9th Cir.2006); Curto v. Edmundson, 392 F.3d 502, 503-04 (2d Cir.2004); Bougher v. Univ. of Pittsburgh, 882 F.2d 74, 77-78 (3d Cir.1989); Lillard v. Shelby County Bd. of Educ., 76 F.3d 716, 729 (6th Cir.1996); Egerdahl v. Hibbing Cmty. Coll., 72 F.3d 615, 618 (8th Cir.1995); M.H.D. v. Westminster Schs., 172 F.3d 797, 803 (11th Cir.1999)). Unlike Moore, Wilmink involved allegations of sexual misconduct by a teacher against a student in a West Virginia school district. Id. The Wilmink court did not address Moore.
Subsequently, the district court for the district of Maryland addressed both Moore and Wilmink and held that the appropriate statute of limitations in a Title IX case involving the sexual harassment of a student was Maryland's personal injury limitations period. Doe v. Bd. of Educ. of Prince George's County, 888 F.Supp.2d 659, 663-64 (D.Md 2012). Again, the court noted that every circuit to consider the issue has held that Title IX borrows the relevant state's statute of limitations for personal injury. Id. at 663. It also distinguished the case before it from Moore because the facts at issue involved the sexual harassment of a student rather than an employee-employer dispute. Id. at 664.
The facts in the present case are more akin to those in Wilmink and Prince George's County. Plaintiff was a student at CCU and complains of sexual misconduct by a professor and subsequent retaliation by CCU for his complaints. In South Carolina, complaints of sexual misconduct between a teacher and a student are generally brought pursuant to state common law or the South Carolina Tort Claims Act (SCTCA) rather than the SCHAL. See, e.g., Doe v. Greenville County School District, 375 S.C. 63, 651 S.E.2d 305 (2007); Moore by Moore v. Berkeley County School District, 326 S.C. 584, 486 S.E.2d 9 (2007); Doe v. Smith, No. 2014-UP-267, 2014 WL 2968925 (Ct.App. June 30, 2014). Thus, for the reasons discussed above, the appropriate statute of limitations for Plaintiff's Title IX claim is South Carolina's limitations period for personal injury claims.
Plaintiff filed this action on December 27, 2017. Plaintiff alleges that Defendant Preston McEver Floyd sexually abused and assaulted him on May 15, 2015. However, CCU's liability under Title IX turns on whether "an official who ... has authority to address the alleged discrimination and to institute corrective measures ... has actual knowledge of discrimination in the [College's] programs and fails adequately to respond" or displays "deliberate indifference" to discrimination. Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998). Plaintiff alleges that he notified CCU officials of the harassment and they failed to adequately address the problem, but he does not allege within the complaint when he first notified someone at CCU about the harassment. Only when all the facts necessary for a statute of limitations defense "clearly appear on the face of the complaint" can the court grant a motion to dismiss on that basis. Goodman v. Praxair, Inc., 494 F.3d 458, 464 (4th Cir. 2007) (citing Richmond, Fredericksburg & Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir.1993)). In addition, Plaintiff also alleges that he was dismissed from the school in retaliation for his complaint, but the date this occurred also does not appear on the face of the complaint. Therefore, at this stage in the litigation, the court cannot determine whether Plaintiff's claims are barred by the statute of limitations and dismissal on that basis is not appropriate.
Coastal Carolina University also argues that Plaintiff fails to plead sufficient factual allegations to state a Title IX retaliation claim. "Retaliation against a person because that person has complained of sex discrimination is another form of intentional sex discrimination encompassed by Title IX's private cause of action." Jackson v. Birmingham Bd. of Educ., 544 U.S. 167, 173 (2005). In order to state a claim for retaliation under Title IX, a plaintiff must show "(1) engagement in a protected activity; (2) an adverse action; and (3) a causal connection between the protected activity and the adverse action." Doe v. Salisbury Univ., 123 F. Supp. 3d 748, 769 (D. Md. 2015) (citing Coleman v. Md. Court of Appeals, 626 F.3d 187, 190 (4th Cir. 2010)). Plaintiff alleges that he complained to CCU of the sexual harassment and assault by Defendant Preston McEver Floyd, that the President of CCU offered him $7,500 in "hush" money and told him to withdraw from school, and when Plaintiff refused, "the school orchestrated a way to kick me out of school." Liberally construing Plaintiff's complaint, as the court must do with pro se litigants, see Erickson v. Pardus, 551 U.S. 89, 94 (2007), Plaintiff's allegations are sufficient to state a claim of Title IX retaliation that is plausible on its face. Therefore, dismissal is not appropriate.
Defendants do not specifically argue that Plaintiff fails to state a claim for sexual harassment under Title IX, presumably because they argue that any such claim is barred by the statute of limitations. Nevertheless, liberally construing Plaintiff's complaint, he has also alleged sufficient facts for his harassment claim. See Jennings v. University of North Carolina, 482 F.3d 686, 695 (4th Cir.2007) (setting forth the elements of a harassment claim under Title IX: "(1) she was a student at an educational institution receiving federal funds, (2) she was subjected to harassment based on her sex, (3) the harassment was sufficiently severe or pervasive to create a hostile (or abusive) environment in an educational program or activity, and (4) there is a basis for imputing liability to the institution").
In sum, Plaintiff alleges sufficient Title IX facts to survive Defendants' Rule 12(b)(6) motion to dismiss as asserted against CCU.
C. False Imprisonment
Plaintiff also asserts a cause of action for false imprisonment. It is not clear whether he intends to allege this claim under state or federal law. "The essence of the tort of false imprisonment consists of depriving a person of his liberty without lawful justification." Law v. S.C. Dep't of Corrs., 368 S.C. 424, 440, 629 S.E.2d 642, 651 (2006). To prevail on a claim for false imprisonment under state law, the plaintiff must establish: (1) the defendant restrained the plaintiff, (2) the restraint was intentional, and (3) the restraint was unlawful. Gist v. Berkeley County Sheriff's Dep't, 336 S.C. 611, 521 S.E.2d 163 (Ct. App. 1999). To establish a § 1983 claim based on a Fourth Amendment violation for false arrest or false imprisonment, a plaintiff must show that a seizure was effected without probable cause. See Massey v. Ojaniit, 759 F.3d 343, 356 (4th Cir. 2014). Regardless of whether Plaintiff is alleging a state or federal claim, he has failed to assert sufficient factual allegations to state a false imprisonment claim that is plausible on its face. He does not allege that Rodney Brock, David DeCenzo, David Klauder, Trivas Overton, or Charles Rodney Session unlawfully restrained him. Thus, dismissal of this claim against these defendants is appropriate. However, he does allege that Floyd drove him to his residence on a false pretense which, liberally construed, is sufficient to allege a state law claim for false imprisonment.
D. Invasion of Privacy
Invasion of privacy is a state law claim. The Supreme Court of South Carolina specified three distinct causes of action for invasion of privacy: (1) wrongful appropriation of personality, (2) wrongfully publicizing of private affairs, and (3) wrongful intrusion into private activities. Meetze v. Associated Press, 230 S.C. 330, 95 S.E.2d 606 (1956); Snakenberg v. Hartford Cas. Ins. Co., 299 S.C. 164, 170, 383 S.E.2d 2, 5 (Ct. App. 1989). Plaintiff appears to assert a cause of action for wrongful intrusion into private activities based on his factual allegation that "Coastal Carolina University blocked and hack [sic] into my emails for a week, and other occasion thereafter." Am. Compl. p. 9 of 11 (ECF No. 22). As asserted against CCU, this claim is barred by the Eleventh Amendment. Plaintiff does not allege that any of the individually named Defendants blocked or hacked into his emails. In his response, Plaintiff asserts Defendants David DeCenzo and Travis Overton used "their supremacy to aide and inflict . . . invasion of privacy." Pl. Resp. p. 2 (ECF No. 48). However, even if the court could consider the additional allegations Plaintiff raises in his response, see, e.g., Miller v. Dish Network, LLC, 326 F.Supp.3d 51, 56 n.2 (E.D.Va. 2018) ("Allegations cannot be raised by way of a plaintiff's response to a motion to dismiss."), these allegations are legal conclusions rather than factual assertions and are insufficient to give rise to a claim for invasion of privacy. For these reasons, dismissal of Plaintiff's invasion of privacy cause of action is appropriate.
V. CONCLUSION
For the reasons discussed above, it is recommended that Defendants Coastal Carolina University (CCU), Rodney Brock, David DeCenzo, David Klauder, Trivas Overton, and Charles Rodney Session's Motion to Dismiss (ECF No. 35) be denied at to Plaintiff's Title IX claims against Defendant Coastal Carolina University and granted as to all other claims against these Defendants. Plaintiff's Title IX and invasion of privacy claims should also be dismissed against Defendant Preston McEver Floyd for the reasons discussed above. Plaintiff's claims for sexual assault and battery and false imprisonment should remain pending against Preston McEver Floyd at this stage of the litigation.
Also pending is Plaintiff's Motion to Sustain Plaintiff's Complaints in Its Entirety (ECF No. 52), in which he appears to be requesting that the court enter judgment in his favor. Is it recommended that this motion be denied. --------
s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge November 30, 2018
Florence, South Carolina