makes them “vulnerable” to it. 526 U.S. at 645. Here, it could be said that
WSU's alleged failure to enforce the expulsion order made Joyce “vulnerable” to
additional incidents of sexual assault and sexual harassment by Walker, even
though she never actually encountered him on campus. See, e.g., Doe ex rel. Doe
v. Derby Bad. of Educ., 451 F. Supp. 2d 438, 444 (D. Conn. Sept. 15, 2006)
(holding that, even absent further actual sexual harassment, plaintiff’s constant
exposure to a potentia/ encounter with her assailant “could be found to constitute
pervasive, severe, and objectively offensive harassment.”).

The case of Kelly v. Yale University, No. 3:01-cv-1591, 2003 WL 1563424,
(D. Conn. Mar. 26, 2003), is very instructive. Kelly was sexually assaulted by
Nolan, a fellow college student who lived in the same dormitory. She reported the
assault to appropriate officials at Yale. Nolan, however, was permitted to remain
on campus for several weeks pending resolution of the university’s grievance
procedures. The university eventually complied with her request to provide her
with alternative housing on campus. Although Kelly had no further contact with
Nolan after the assault, she alleged that his presence on campus and the risk that
she might encounter him created a hostile environment. She withdrew from
classes for the remainder of the semester. On a motion for summary judgment,
the court found that a reasonable jury could agree with Kelly that the environment
was “sufficiently hostile to deprive [her] of access to educational opportunities

provided by a university.” /d. at *3.

20


2. Deliberate Indifference in Failing to Take Interim Measures to
Protect Joyce Following the Sexual Assault by Walker

Joyce next alleges that, although she reported the sexual assault “to Wright
State”® on November 9, 2015, “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. #1, PagelD#2. She
further alleges that “the Wright State Police Department did not investigate
Walker's room until after he had vacated . . . Accordingly, evidence related to the
assault was left in the room for days.” /d. According to Joyce, “Wright State’s
failure to take interim measures constitutes deliberate indifference under Title IX.”
/d. at PagelD#5.

WSU argues that its response to Joyce’s report of sexual assault cannot be
deemed deliberately indifferent, particularly given the need to provide Walker with
adequate due process. As the Complaint alleges, Walker was removed from
campus within three days, had a disciplinary hearing within ten days, and was
expelled the day after the hearing.

Joyce alleges, however, that WSU's failure to take any action to protect her
until three days after she reported the sexual assault, and failure to timely

investigate Walker's dorm room, where the sexual assault took place, was clearly

3 Here, even though Joyce fails to allege that she reported the assault to an

“appropriate person with authority to take corrective action,” proper notice can be
easily inferred from the fact that Walker was, in fact, suspended and then expelled
from WSU, in response to the reported rape.

14


Date: June 15, 2018 Edman

WALTER H. RICE
UNITED STATES DISTRICT JUDGE

24


therein.” Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th
Cir. 2008).

In this 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, PagelD#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, PagelD#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.”
/d. at PagelD##17-18 n.1 (citing Weiner v. Klais & Co., Inc., 108 F.3d 86, 89 (6th
Cir. 1997)).

Joyce 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. #1, PagelD#2.


The court rejected Yale’s argument that its response to Kelly's complaint
was reasonable. The court held that, “[a]lthough Kelly was not subjected to
further harassment by Nolan, it was her departure from her classes and her
dormitory, not any immediate action taken by Yale, that assured that outcome.”
Id. at *4. Joyce maintains that the same is true for her. It was her withdrawal
from the university that ensured that she would not be the victim of further
assaults or harassment by Walker. Had she remained on campus, she would have
remained “vulnerable” to additional incidents, given WSU’s alleged failure to
enforce the expulsion order.

For the reasons explained above, the fact that Joyce never actually
encountered Walker on campus after WSU issued the expulsion order does not
necessarily warrant dismissal of this portion of her Title IX claim. For purposes of
WSU's motion to dismiss, Joyce has adequately alleged that the sexual
harassment at issue was so severe, pervasive, and objectively offensive that it
effectively barred her access to educational opportunities.

Again, however, Joyce’s allegations of notice are deficient as currently pled.
Joyce alleges that she learned from a fellow student that Walker was present on
campus over Thanksgiving break. Nevertheless, because she does not allege that
she reported this information to anyone at WSU, WSU cannot be held liable for
failing to take corrective action.

With respect to her allegation that Walker was also present on campus on

December 16th or 17th, she alleges that she reported this to the WSU Police

21


Assuming that Joyce can cure this deficiency, the question becomes
whether her allegations of deliberate indifference to Walker's defiance of the
expulsion order are sufficient to state a plausible claim. Based on the authorities
cited above, the Court finds that her claims of deliberate indifference are sufficient
to survive a motion to dismiss. The allegations of Walker’s sexual assault of
Joyce, combined with allegations that WSU knew of his history of sexual
misconduct in high school, and knew that he had sexually assaulted or sexually
harassed several other female students on WSU’s campus, could support a finding
that WSU’s alleged failure to take action to enforce its order prohibiting him from
being present on campus was clearly unreasonable in light of the known

circumstances. It is, therefore, actionable under Title IX.

IV. Conclusion
For the reasons set forth above, the Court SUSTAINS Plaintiff's Motion to
Strike Portions of Defendant’s Motion to Dismiss Plaintiff's Complaint, Doc. #10.
The Court SUSTAINS IN PART and OVERRULES IN PART Defendant Wright
State University’s Motion to Dismiss Plaintiff's Complaint, Doc. #5. Within 30
days of the date of this Decision and Entry, Plaintiff may file a motion seeking

leave to file an Amended Complaint to cure the identified deficiencies.

23


WSU also relies on VD. ex rel. DeWeese v. Bowling Green Independent
School District, 709 F. App'x 775 (6th Cir. 2017). There, a high school student,
R.M., was expelled after sexually assaulting M.D., a fellow student. R.M. was
eventually permitted to return to school for his senior year, but was ordered to
have no contact with the plaintiff. He complied with that order. Although he had
no further interaction with M.D., she still saw him every day. She alleged that this
made her uncomfortable and created a hostile environment.

The district court granted summary judgment to the school district, and the
Sixth Circuit affirmed, holding that there was no deliberate indifference. The
school took immediate action to remove R.M. from the school. He was eventually
permitted to return, but only on the condition that he have no contact with M.D.
The court held that the condition “worked as intended.” The remedial policy was
successful and there were no further interactions between the two students. The
court found that, because there was no ongoing harassment after the incident was
reported, the case was distinguishable from other cases in which schools had
“actual knowledge that their efforts to remediate ongoing harassment were
ineffective.” /d. at 778.

Unlike the assailants in Ha and V.D., Walker failed to comply with WSU’s
remedial expulsion order which prohibited him from being present on campus and,
more importantly, WSU did nothing to enforce that order. In Ha, the court
specifically noted that “[i]f Northwestern had learned that its response was proven

to be inadequate to prevent further harassment by [the professor], it would have

18


/d. at PagelD#5.

WSU argues that this theory of liability fails on multiple grounds. It first
argues that dismissal is proper under Federal Rule of Civil Procedure 12(b)(1)
because Joyce lacks standing to sue on behalf of other individuals who may have
been sexually assaulted or sexually harassed by Walker. It also argues that any
such claims would be time-barred. These two arguments are easily disposed of.
Given that Joyce concedes that she is not seeking relief for anyone other than
herself, these arguments are overruled as moot. Joyce cites to these other
incidents simply to show that WSU was on notice of Walker's proclivity for sexual
misconduct.

WSU does not dispute that, in appropriate circumstances, liability under Title
IX may arise from reports of the sexual assault or sexual harassment of persons
other than the plaintiff. In Escue v. Northern Oklahoma College, 450 F.3d 1146
(10th Cir. 2006), the court, referring to the Supreme Court's decision in Gebser,
explained that “[bly noting that actual knowledge of discrimination in the
recipient’s program is sufficient, the Court implicitly decided that harassment of
persons other than the plaintiff may provide the school with the requisite notice to
impose liability under Title IX.” /d. at 1153 (emphasis in original). See a/so
Johnson v. Galen Health Insts., Inc., 267 F. Supp. 2d 679, 688 (W.D. Ky. 2003)

(“the actual notice standard is met when an appropriate official has actual


is deliberately indifferent to known acts of student-on-student sexual harassment
and the harasser is under the school’s disciplinary authority.” /d. at 646-47.

In 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. 2016).

WSU 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.” /d. (citing Gebser v. Lago Vista Indep. Sch.
Dist., 524 U.S. 274, 290 (1998)).

The “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.’”
/d. (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,


The 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.

tl. Defendant’s Motion to Dismiss (Doc. #5)

A. Relevant Law

Title 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 rel. LaShonda D. v. Monroe
Cty. Bd. of Educ., 526 U.S. 629, 633 (1999). “[Rlecipients of federal funding

may be liable for ‘subjectling]’ their students to discrimination where the recipient

‘It is undisputed that WSU receives federal funding and is subject to Title IX’s
mandate.


been required to take further steps to avoid liability.” 2014 WL 5893292, at *2.
See also Vance v. Spencer Cty. Pub. Sch. Dist., 231 F.3d 253, 261 (6th Cir.
2000) (holding that when a school knows “that its remedial action is inadequate
and ineffective, it is required to take reasonable action in light of those
circumstances to eliminate the behavior.”); Patterson v. Hudson Area Schs., 551
F.3d 438, 448 (6th Cir. 2009) (same); Wills v. Brown Univ., 184 F.3d 20, 26 (1st
Cir. 1999) (“If the institution takes timely and reasonable measures to end the
harassment, it is not liable under Title IX for prior harassment . . . Of course, if it
learns that its measures have proved inadequate, it may be required to take further
steps to avoid new liability.”).

The Court rejects WSU’'s argument that, because there was no ongoing
sexual harassment after Walker was expelled from the university, its response to

his presence on campus cannot be deemed “inadequate.” Walker was allegedly
expelled because he had sexually assaulted not only Joyce, but several other
female students on campus. WSU found that he posed a substantial risk,
warranting the extreme remedy of expulsion. Joyce maintains that WSU’s failure
to enforce the expulsion order created a hostile environment. She no longer felt
safe on campus and felt compelled to withdraw from the university.

In the Court's view, the fact that Joyce had no further contact with Walker
and was not subjected to further sexual assaults or sexual harassment by him does

not necessarily relieve WSU of liability under Title IX. In Davis, the Supreme Court

held that deliberate indifference may “subject” students to sexual harassment if it

19


conclusions” or “a formulaic recitation of the elements of a cause of action.” /d, at
555. “Rule 8... does not unlock the doors of discovery for a plaintiff armed with
nothing more than conclusions.” Ashcroft v. /gbal, 556 U.S. 662, 678-79 (2009).
Legal conclusions “must be supported by factual allegations” that give rise to an
inference that the defendant is, in fact, liable for the misconduct alleged. /d. at
679.

Cc. Analysis

As discussed above, Joyce’s Complaint alleges that WSU was deliberately
indifferent: (1) in its response to prior incidents of sexual assault and sexual
harassment by Walker; (2) in failing to take interim measures to protect her after
she was sexually assaulted by Walker; and (3) in failing to enforce its order
prohibiting Walker from being on WSU’s campus. At this juncture, the question is
not whether Joyce can ultimately prevail on these theories, but, rather, whether
the allegations are sufficient to state a plausible claim for relief.

1. Liability Based on WSU’s Alleged Deliberate Indifference to Prior
Incidents of Sexual Assault and Sexual Harassment by Walker

Paragraph 10 of the Complaint alleges that “Myron Walker had received a
disciplinary record for sexual assault while in high school, which Wright State
knew of.” Doc. #1, PagelD#2. The Complaint further alleges that:

39. Prior to November 8, 201[5], Wright State had actual
knowledge of Walker’s history of sexual misconduct.

40. Walker had also assaulted other female students at Wright
State, which Wright State had actual knowledge of.

41. Wright State’s enrollment of Walker and failure to protect
students from him constitutes deliberate indifference.


IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

CAROLYN JOYCE,

Plaintiff,
Case No. 3:17-cv-387

JUDGE WALTER H. RICE

Vv.
WRIGHT STATE UNIVERSITY,
Defendant.

DECISION 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 DAYS

Plaintiff 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


the soccer coach, and the school had responded “promptly and reasonably” to the
incident involving the other student. /d.

Implicit in this holding is the concept that, if an appropriate official had
actual notice of widespread sexual harassment or sexual assault by a particular
individual, and the school failed to take appropriate action to remedy the hostile
environment, it could be held liable under Title IX for a later sexual assault. The
relevant questions are whether the school had actual knowledge that the assailant
posed a substantial risk, and whether the school’s response was clearly
unreasonable in light of the known circumstances.

WSU maintains that Joyce’s Complaint fails to identify with sufficient
particularity Walker's prior instances of alleged sexual assault and sexual
harassment. Joyce does not allege when those incidents occurred, and provides
no details concerning the number or the nature of the prior incidents. WSU
maintains that the allegations are too vague to support a finding that WSU was on
notice of prior similar incidents and acted with deliberate indifference.

Although some courts have concluded that prior instances of sexual
harassment are “too dissimilar, too infrequent, and/or too distant in time to provide
the school with actual knowledge of sexual harassment in its programs,” Escue,
450 F.3d at 1153 (internal quotation omitted), such determinations are typically
made on motions for summary judgment, once the parties have had the
opportunity to conduct discovery. Notably, Joyce’s Complaint alleges numerous

other incidents of sexual assault and/or sexual harassment by Walker, the vast

12


knowledge of a substantial risk of abuse to students based on prior complaints by
other students.”).”

WSU notes, however, that a district court, in a footnote in an unpublished
opinion, stated that the Sixth Circuit “has not recognized Title IX liability on the
basis of deliberate indifference to an individual’s propensity to harass . . . before an
attack has occurred.” C.R. v. Novi Cmty. Sch. Dist., No. 14-14531, 2017 WL
528264, at *7 n. 18 (E.D. Mich. Feb. 9, 2017).

The Sixth Circuit, however, has, in fact, contemplated such a basis for
liability. In Henderson v. Walled Lake Consolidated Schools, 469 F.3d 479 (6th
Cir. 2006), a student filed suit under Title IX after being sexually harassed by her
soccer coach. She alleged that the assistant principal was on notice of the
coach's recent inappropriate sexual relationship with a different student and had
failed to take adequate corrective action. Although the Sixth Circuit granted
summary judgment in favor of the school, it did so based on a finding that no
“administration official had actual notice of widespread misconduct.” /d. at 492

(emphasis added). The court noted that there had been no other complaints about

? WSU correctly points out that it cannot be held liable for conduct that occurred
while Walker was in high school and not under WSU’s disciplinary authority.

Davis, 529 U.S. at 646-47. Nevertheless, a university’s knowledge of an incoming
student's past serious sexual misconduct may play a factor in determining whether
the university was deliberately indifferent in its response to a later on-campus
sexual assault by that student. See, e.g., Williams v. Bd. of Regents of Univ. Sys.
of Ga., 477 F.3d 1282, 1293 (11th Cir. 2007). And certainly, when the university
has actual knowledge of sexual harassment and sexual assaults that were
committed on its own campus, as Joyce alleges here, a failure to adequately
respond can give rise to a claim of deliberate indifference.

11


“liJn 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.

B. 12(b)(6) Standard of Review

Federal Rule of Civil Procedure 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 bears 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 motion to dismiss under Rule 12(b)(6) “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 12(b)(6) motion, a court must “construe
the complaint in the light most favorable to the plaintiff, accept its 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 Treesh, 487 F.3d at
476).

Nevertheless, to survive a motion to dismiss under Rule 12(b)(6), the
complaint must contain “enough facts to state a claim to relief that is plausible on
its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). Unless the
facts alleged show that the plaintiff's claim crosses “the line from conceivable to
plausible, [the] complaint must be dismissed.” /d. Although this standard does not

require “detailed factual allegations,” it does require more than “labels and


Department, but the officers failed to take any action. Citing Ross v. Corporation
of Mercer University, 506 F. Supp. 2d 1325, 1352 n.43 (M.D. Ga. 2007), WSU
argues that a campus police officer is not an “appropriate person with authority to

take corrective action.” As the court explained in Ross, although a campus police
officer is, in one sense, empowered to take “corrective action” with respect to a
sexual assault, he or she has no authority to reformulate sexual harassment
policies on behalf of the university to end discrimination on campus. Accordingly,
notice to a campus police officer does not constitute “actual notice” for purposes
of Title IX. /d.*

Joyce also alleges that “Katie Deedrick, an employee and representative of
Wright State University,” knew that Walker had returned to campus after being
expelled. Joyce does not indicate how Deedrick knew this. Nor does she allege
what Deedrick’s job title was. Accordingly, the allegations are insufficient to raise
a reasonable inference that Deedrick was a school administrator with authority to
take corrective action. To the extent that Joyce’s Title IX claim is based on
WSU's alleged deliberate indifference in failing to enforce its order prohibiting
Walker from returning to campus, it is subject to dismissal on this basis. Again,
though, the Court will give Joyce 30 days from the date of this Decision and Order

to seek leave to file an Amended Complaint to cure this deficiency, if she can do

so within the bounds of Federal Rule of Civil Procedure 11.

* Of course, if the police then notified an appropriate school official that Walker
had violated the order to remain off campus, this could constitute adequate notice;
however, the Complaint alleges no such notification.

22,


deliberate indifference under Title IX, that Joyce lacks standing to pursue certain
claims, and that some claims are barred by the statute of limitations.

Attached 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, PagelD##25-27.

Plaintiff 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 for

decision.

il. Plaintiff's Motion to Strike (Doc. #10)

Plaintiff 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


unreasonable in light of the known circumstances. The circumstances are
potentially more egregious given that she and Walker lived in the same dormitory.

Again, whether a school acted with deliberate indifference is typically a
question of fact to be resolved by the jury. At this point, the reason for the three-
day delay is not known. It appears, from the Complaint, that WSU took no action
to remove Walker from campus until a court issued a restraining order against him.
It is not clear whether any other interim measures, not cited in the Complaint, were
taken by WSU during that time period.

Ultimately, Joyce may have a difficult time convincing a factfinder that a
three-day delay rises to the level of deliberate indifference. However, at this stage
of the litigation, the only question is whether she has stated a plausible claim for
relief. In the Court’s view, she has, particularly given her allegations that WSU
was aware that Walker had a history of sexual assault, and had sexually assaulted
several other female students on campus. Whether the three-day delay constitutes
deliberate indifference is better determined once additional facts have been
obtained through discovery.

Accordingly, to the extent that Joyce has alleged a Title IX violation based
on WSU’s alleged deliberate indifference in failing to take interim measures to

protect her from Walker, the Court overrules WSU’s motion to dismiss.


Id. at PagelD##3-5.

Joyce maintains that it is not enough that WSU expelled Walker. She
alleges that the university's failure to enforce its order prohibiting Walker's
presence on campus created a hostile environment in which she felt unsafe. She
maintains that, as a result, she felt compelled to withdraw from classes, and was
deprived of access to further educational opportunities at WSU.

WSU, however, argues that Walker’s mere presence on campus, following
his expulsion, does not give rise to liability under Title IX. It notes that, following
Walker's expulsion, Joyce reported no further incidents of sexual assault or sexual
harassment, and never again actually encountered him on campus.

WSU relies heavily on Ha v. Northwestern University, No. 14C895, 2014
WL 5893292 (N.D. Ill. Nov. 13, 2014). In that case, after a female student
reported a sexual assault by one of her professors, he was ordered to have no
further contact with her. He complied with that order. The student, however,
alleged that this was not enough. She argued that, because the professor was
allowed to remain on campus, she felt unsafe and experienced panic attacks. She
argued that this created a hostile environment that deprived her of educational
opportunities. The court disagreed, holding that her claim was not actionable
under Title IX. /d. at *2. It found that the university had taken appropriate
remedial action and the plaintiff had no right to make “particular remedial

demands.” /d.


According 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.

Joyce 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 him.

With 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.

On 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


to Dismiss Plaintiff's Complaint, Doc. #5; and (2) Plaintiff's Motion to Strike

Portions of Defendant’s Motion to Dismiss, Doc. #10.

I Background and Procedural History

Plaintiff Carolyn Joyce was a student at WSU during the fall semester of
2015. 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.

On 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.

Nevertheless, 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.


majority taking place on WSU’s campus. Doc. #1, PagelD##2-3. In the Court’s
view, Joyce’s allegations of previous widespread misconduct by Walker are
sufficient to open the doors to discovery.

Nevertheless, the Court agrees with WSU that Joyce’s allegations
concerning WSU'’s actual notice of Walker's history of sexual assaults and sexual
harassment are insufficient to withstand the motion to dismiss. To succeed on her
claim, Joyce must prove that a “school administrator with authority to take
corrective action had actual knowledge of the sexual harassment.” Stiles, 819
F.3d at 848 (citing Gebser, 524 U.S. at 290). The administrator’s “actual
knowledge” may come from any number of sources, including complaints by
students other than the plaintiff.

Joyce’s Complaint, alleging only that “Wright State” knew of Walker’s high
school disciplinary record and of his previous assaults on other WSU students, is
too general. Absent factual allegations that someone at Wright State with
authority to take corrective action had actual knowledge of these other incidents,
Joyce has failed to state a claim upon which relief may be granted. The Court will,
however, give Joyce 30 days from the date of this Decision and Entry to seek
leave to file an Amended Complaint to cure this deficiency, if she can do so within

the bounds of Federal Rule of Civil Procedure 11.


3. Deliberate Indifference in Failing to Enforce Order Prohibiting
Walker’s Presence on Campus

Joyce also alleges that, although WSU expelled Walker on November 20,
2015, and forbade him from returning to campus for any reason, it failed to
enforce that order. The day before Joyce returned to campus from Thanksgiving
break, “she was informed by another student that Walker had been on campus
since his expulsion.” Doc. #1, PagelD#3.

Joyce further alleges:

20. On or about December 16th or 17th, 2015, Joyce learned
Walker was on campus presently, due to a social media
video posting he made.

21. Joyce immediately contacted Wright State University
Police, who came to Hawthorn Hall, where Joyce was
staying, and although they reviewed the videos, said that
there was nothing they could do, that they would not be
filing a report, and that they would take no further action.

22. Wright State University Police did not make any report or
notation of the December 16th or 17th incident
whatsoever.

23. At that point, Joyce, who was already having a hard time
coping with returning to campus, could no longer feel safe
on campus and was unable to return to classes.

eeK

25. In January, Joyce spoke to Katie Deedrick, an employee
and representative of Wright State University, who was
aware of the incident on or about November 8th, and had
been in communication with Joyce and Joyce’s mother
since that time.

26. Katie Deedrick was aware that Walker had returned to
campus after his expulsion.

eK

42. Wright State had actual knowledge of Walker’s presence
on campus after his expulsion.

43. Wright State’s failure to cause Walker to be removed from
campus after his expulsion constitutes deliberate
indifference.

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