THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

BRIAN GARRETT, et al., 

 Plaintiffs, 

v. 

THE OHIO STATE UNIVERSITY, 

 Defendant. 

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Case No. 2:18-cv-00692 

Judge Michael H. Watson 

Magistrate Judge Deavers 

DEFENDANT THE OHIO STATE UNIVERSITY’S 

MOTION TO DISMISS PLAINTIFFS’ FIRST AMENDED COMPLAINT 

Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant The Ohio State University 

hereby moves this Court to dismiss all claims asserted against it in plaintiffs’ First Amended 

Complaint. The grounds for this Motion are set forth more fully in the accompanying 

Memorandum in Support. 

MICHAEL DeWINE 

ATTORNEY GENERAL OF OHIO 

By: /s/ Michael H. Carpenter 

Michael H. Carpenter (0015733) (Trial Attorney) 

Timothy R. Bricker (0061872) 

David J. Barthel (0079307) 

Stephen E. Dutton (0096064) 

CARPENTER LIPPS AND LELAND LLP 

280 Plaza, Suite 1300 

280 North High Street 

Columbus, OH 43215 

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

dutton@carpenterlipps.com

Special Counsel for Defendant The Ohio State University 

 
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MEMORANDUM IN SUPPORT 

I. INTRODUCTION. 

 Plaintiffs allege they attended The Ohio State University (“Ohio State”) from the late 1970s 

to 1999. They are suing Ohio State individually and as putative class representatives for the 

conduct of Dr. Richard Strauss. 

By way of background, in March 2018, a former wrestler reported allegations related to 

Dr. Strauss to Ohio State. From the start, Ohio State took these allegations seriously. In rapid 

response, by April 5, 2018, Ohio State announced it was retaining an outside law firm to oversee 

an independent investigation into the allegations. To date, the investigators have conducted 

confidential interviews of more than 335 former students and university staff believed to have 

information concerning the allegations related to Dr. Strauss. The independent investigators 

additionally are investigating factually what university leaders in place at the time of the alleged 

events may have known. In this regard, they have interviewed over 100 individuals who worked 

at the university during the relevant time period, including athletic department, medical center, 

and student health center staff, as well as faculty. Former administrators, human resources 

professionals, and legal counsel also have been interviewed. The investigators remain in regular 

communication with the Franklin County Prosecutor’s Office. In furtherance of their 

determination to understand what occurred, and who knew about it at the time, Ohio State and its 

current leaders continue to encourage persons possessing information related to Dr. Strauss to 

contact the investigators. That independent investigation continues and Ohio State remains 

committed to appropriately addressing its factual findings, whatever they may be. 

Separate from the independent investigation, however, plaintiffs have filed the instant legal 

proceeding. In their original complaint, plaintiffs asserted they were injured due to the alleged 

conduct of Dr. Strauss in “the late 1980s and 1990s,” at least twenty years ago, and that they had 
3

legal rights and remedies pursuant to Title IX, Chapter 20 U.S.C. Section 1681 et seq. (“Title IX”) 

and Chapter 42 U.S.C. Section 1983 (“Section 1983”). Defendant Ohio State moved to dismiss 

the original complaint on September 7, 2018. In response, Plaintiffs filed their First Amended 

Complaint on October 26, 2018. 

First, and without exception, every civil legal claim is subject to a statute of limitations, 

i.e., a defined time period within which a civil claim must be brought or else be barred. The 

Supreme Court of the United States has observed that a statute of limitations is “designed to 

promote justice by preventing surprises through the revival of claims that have been allowed to 

slumber until evidence has been lost, memories have faded, and witnesses have disappeared. The 

theory is that even if one has a just claim it is unjust not to put the adversary on notice to defend 

within the period of limitation and that the right to be free of stale claims in time comes to prevail

over the right to prosecute them.” American Pipe & Const. Co. v. Utah, 414 U.S. 538, 554 (1974) 

(quoting Order of R.R Telegraphers v. Railway Express Agency, 321 U.S. 342, 348-349 (1944)). 

The statute of limitations for a Title IX claim, such as asserted by plaintiffs, is two years. 

The acts alleged in plaintiffs’ First Amended Complaint occurred decades ago. Plaintiffs attended 

Ohio State from the late 1970s to 1999. Dr. Strauss worked at Ohio State between 1978 and 1998, 

and died in 2005. Larkins Hall was torn down in 2005. Plaintiffs did not file their initial complaint 

until July 16, 2018. Their Title IX claims are barred by the applicable two-year statute of 

limitations and should be dismissed with prejudice. 

In filing this Motion to Dismiss, Ohio State is not ignoring or being dismissive of plaintiffs’ 

factual allegations. But statutes of limitations are critical attributes of our system of laws. Here, 

the applicable statute of limitations establishes that plaintiffs’ claims are legally barred. They 

should be dismissed. 

 
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II. PLAINTIFFS’ ALLEGATIONS AND PROCEDURAL HISTORY.

On July 16, 2018, four former wrestlers who allege they attended Ohio State during “the 

late 1980s and 1990s” commenced this action by filing a complaint against Ohio State individually 

and as putative class representatives, asserting that former Ohio State physician, Dr. Richard 

Strauss, sexually assaulted, battered, molested, and/or harassed them while at Ohio State. See

Compl. (Doc. # 1) at ¶¶ 14-17. Those plaintiffs brought claims against Ohio State pursuant to 

Title IX and Section 1983. Id. at ¶¶ 76-111. 

On September 7, 2018, Ohio State filed a motion to dismiss all claims asserted against it 

in plaintiffs’ complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6). See Ohio State’s Motion 

to Dismiss (Doc. # 23). Rather than respond to Ohio State’s motion to dismiss, plaintiffs filed a 

First Amended Complaint on October 26, 2018. See FAC (Doc. # 33). Similar to the initial 

complaint, the First Amended Complaint alleges that plaintiffs attended Ohio State as students 

from “the late 1970s” to 1999 and that they were sexually assaulted, battered, molested, and/or 

harassed by Dr. Strauss. See FAC (Doc. # 33) at ¶¶ 17-18, 56, 60, 66-67, 71-73, 77, 78, 84, 88-

89, 95, 97, 99-105. Plaintiffs allege the abuse at issue occurred between “the late 1970s” and 1998. 

Id.

The First Amended Complaint brings claims against Ohio State pursuant only to Title IX; 

plaintiffs have abandoned the Section 1983 claims previously alleged in their initial complaint. Id. 

at ¶¶ 247-273. Dr. Strauss worked at Ohio State from 1978 to 1998, and died in 2005. Id. at ¶¶ 21, 

110, 112, 129, 192. Ohio State demolished Larkins Hall in 2005. Id. at ¶ 129. 

Thus, plaintiffs’ Title IX claims are based on acts alleged to have been committed at least 

twenty (20) years ago, by someone who stopped working at Ohio State twenty (20) years ago, and 

who died thirteen (13) years ago, and which primarily occurred at a facility demolished thirteen 
5

(13) years ago.1

III. PLAINTIFFS’ TITLE IX CLAIMS ARE BARRED BY THE APPLICABLE TWOYEAR STATUTE OF LIMITATIONS. 

A complaint is subject to dismissal under Rule 12(b)(6) if, on its face, the allegations, taken 

as true, show the plaintiff is not entitled to relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “If 

the allegations . . . show that relief is barred by the applicable statute of limitation[s], the complaint 

is subject to dismissal for failure to state a claim . . . .” Jones v. Bock, 549 U.S. 199, 215 (2007). 

Dismissal under Fed. R. 12(b)(6) is proper “if it is apparent from the face of the complaint that the 

statute of limitation[s] has run.” Reed v. Ohio State Univ. Med. Ctr., No. 2:12-CV-241, 2012 WL 

5378379, at *4 (S.D. Ohio Oct. 31, 2012) (citing Pierce v. County of Oakland, 652 F.2d 671 (6th 

Cir.1981)); see also Hoover v. Langston Equip. Assocs., Inc., 958 F.2d 742, 744 (6th Cir. 1992). 

Here, plaintiffs attempt to state claims pursuant solely to Title IX. See FAC at ¶¶ 247-273. 

The Sixth Circuit has recognized that Title IX does not itself provide a statute of limitations for 

Title IX claims. See Lillard v. Shelby Cty. Bd. of Educ., 76 F.3d 716, 728-729 (6th Cir. 1996) 

(“Neither Title VI nor Title IX provide a limitation period expressly pertaining to judicial 

proceedings, a failure occasioned, no doubt, by the fact that, for both statutes, private causes of 

action were implied by the courts”). Accordingly, courts apply “state personal injury limitation 

periods to Title IX and Title VI claims . . . .” Id. at 729. In Ohio, the statute of limitations for 

personal injury is two (2) years. See OHIO REV. CODE § 2305.10(A). Thus, the statute of 

 

1 Ohio State is unaware of the identities of all John Doe plaintiffs in this matter because plaintiffs 

have not obtained the Court’s permission to proceed anonymously, as required by the Sixth Circuit. 

See Citizens for a Strong Ohio v. Marsh, 123 F. App’x 630, 636–37 (6th Cir. 2005). Plaintiffs also 

indicated in their Rule 26(f) Report (Doc. No. 27), that they “will file a formal motion to 

withdraw[] and a request for substitute counsel for one John Doe plaintiff to be filed on or before 

October 26 or [for] John Doe to proceed pro se.” See Rule 26(f) Report (Doc. # 27) at 3. Plaintiffs’ 

counsel have not so moved as required by Local Rule 83.4. Instead, they apparently have dropped 

him as a named plaintiff. See Pl. Resp. in Opp. To Def. Motion to Stay Discovery (Doc. # 35) at 

6. 
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limitations for a Title IX claim against an instrumentality of the State of Ohio, such as Ohio State, 

is two years. See Lillard, 76 F.3d at 729; Giffin v. Case W. Reserve Univ., No. 98-3267, 1999 WL 

238669 at *1-2 (6th Cir. April 13, 1999). 

Even though Title IX borrows Ohio’s personal injury statute of limitations, federal law 

determines when a Title IX claim accrues. King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 

762 (5th Cir. 2015); Stanley v. Trustees of Cal. State Univ., 433 F.3d 1129, 1136 (9th Cir. 2006); 

Anderson v. Bd. of Educ. of Fayette Cty., 616 F.Supp.2d 662, 668 (E.D. Ky. 2009). A Title IX 

claim “accrues on the date when the plaintiff knew, or through reasonable diligence should have 

known, of an injury giving rise to [his] cause of action.” Bowling v. Holt Pub. Sch., No. 1:16-CV1322, 2017 WL 4512587, at *1 (W.D. Mich. May 26, 2017) (citing Ruff v. Runyon, 258 F.3d 498, 

500 (6th Cir. 2001), abrogated in part on other grounds as recognized by Bressler v. Wiegle, No. 

3:06 CV 3115, 2008 WL 886124, at *9 (N.D. Ohio Mar. 28, 2008)); Anderson, 616 F. Supp. 2d at 

668 (“The statute of limitations commences to run when the plaintiff knows or has reason to know 

of the injury which is the basis of his action”) (quoting Roberson v. Tennessee, 399 F.3d 792, 794 

(6th Cir. 2005)). “Otherwise stated, ‘[a] plaintiff’s action accrues when he discovers that he has 

been injured, not when he determines that the injury was unlawful.’” Anderson, 616 F. Supp. 2d 

at 668 (quoting Amini v. Oberlin College, 259 F.3d 493, 600 (6th Cir. 2001)); see also Twersky v. 

Yeshiva Univ., 993 F. Supp. 2d 429, 440 (S.D.N.Y. 2014), aff’d, 579 F. App’x 7 (2d Cir. 2014) 

(“‘[D]iscovery of the injury, not discovery of the other elements of a claim, is what starts the 

clock,’” and this is true “regardless of how complex or difficult to discover the elements of the 

cause of action may be”) (quoting Rotella v. Wood, 528 U.S. 549, 555-556, 120 S.Ct. 1075, 145 

L.Ed.2d 1047 (2000)). Accrual also “is an objective inquiry, which looks to what event should 

have alerted the typical lay person to protect his or her rights.” Helm v. Eells, 642 F. App’x 558, 

561 (6th Cir. 2016) (citation omitted). 
7

The Sixth Circuit, the Southern District of Ohio, and numerous courts, including other 

district courts within the Sixth Circuit, have held that a Title IX injury accrues at the time the 

alleged sexual abuse, assault, or harassment occurs. See, e.g., Gilley v. Dunaway, 572 F. App’x 

303, 308 (6th Cir. 2014) (Title IX and Section 1983 claims accrued at time student was sexually 

abused by her high school coach because “[e]ven if this Court accepted as true that [plaintiff] was 

completely unaware both that she was being sexually abused and that the Board knew of that 

sexual abuse,” plaintiff was “aware of facts that should have aroused her suspicion of the claims 

against the defendants at the time of her injuries” and did not “exercise[] reasonable care and 

diligence to discover whether she had a viable legal claim” in waiting almost seven years after she 

turned 18 years old to sue) (brackets, quotation marks, and citations omitted); Adams v. Ohio Univ., 

300 F. Supp. 3d 983, 991 (S.D. Ohio 2018) (Title IX claims accrued at the time professor sexually 

harassed students); Bowling, 2017 WL 4512587, at *2 (Title IX claims accrued on the date of the 

last sexual assault of the student)2

. 

 

2 See also Anderson, 616 F.Supp.2d at 668 (“the Court finds that insofar as Plaintiffs were injured 

while attending Fayette County Public Schools, they were no doubt aware of the underlying 

injuries of which they complain, the abuse at the hands of employees of the Board, at the time it 

was allegedly inflicted. This is to say that Plaintiffs’ causes of action accrued at the time of the 

alleged abusive acts”); King-White, 803 F.3d at 762-763 (Title IX claim accrued when female high 

school student was sexually abused by her female teacher, not when student learned nearly two 

years after the abuse during the teacher’s criminal case that school officials allegedly had ratified 

and acted with deliberate indifference to the abuse); Twersky v. Yeshiva Univ., 579 F. App’x 7, 9-

10 (2d Cir. 2014), cert. denied 135 S.Ct. 1702 (Mar. 30, 2015) (Title IX claims of former high 

school students by their teachers accrued “[w]hen plaintiffs left [the high school], more than 20 

years before filing this suit,” not when former president and chancellor of the school admitted in 

news article published decades after the abuse that he and other administrators had been aware of 

the risk of the abuse when it was occurring, because plaintiffs’ “unquestionabl[e] aware[ness] of 

(1) their injuries, (2) their abusers’ identities, and (3) their abusers’ prior and continued 

employment at [the high school] . . . was sufficient to put them on at least inquiry notice as to the

school’s awareness of and indifference to the abusive conduct by its teachers”); Varnell v. Dora 

Consol. Sch. Dist., 756 F.3d 1208, 1210, 1216-1217 (10th Cir. 2014) (Title IX claim accrued no 

later than the last date former female high school student was sexually abused by her female coach, 

not when student “learned the full extent of the resultant emotional injury”); Wilmink v. Kanawha 

Cty. Bd. of Educ., 214 F. App’x 294, 296-297 (4th Cir. 2007) (Title IX claim arising from sexual 
8

Here, it is apparent from the face of plaintiffs’ First Amended Complaint that the two-year 

limitation period applicable to plaintiffs’ Title IX claims expired long ago. Plaintiffs allege Dr. 

Strauss “sexually assaulted,” “battered,” “abused,” “molested,” “harassed,” “fondled,” and/or 

“digitally penetrated” them between “the late 1970s” and 1997 and/or that “devian[t],” 

“harass[ing,],” “voyeuristic,” and “lewd” conduct occurred at Larkins Hall between 1978 and 

1998. See FAC at ¶¶ 18, 52, 56, 60, 63, 66, 70-105, 111, 119-120, 122, 139-140, 154, 162-164, 

219, 255. Additionally, as detailed by plaintiffs themselves in great specificity in their First 

Amended Complaint, each plaintiff was aware of the alleged abusive acts at the time they occurred, 

including a belief, at the time of the exams, that Dr. Strauss’s “exams were medically inappropriate 

and deeply uncomfortable[.]” See FAC at ¶ 201. Plaintiffs also plead the following additional 

“common” facts establishing their awareness of the alleged abusive acts at the time they occurred: 

Allegations Common To All Plaintiffs’ Awareness

• “Dr. Strauss’s abuse . . . traumatized many victims for decades. Indeed, some victims 

 

assault of former student by her junior high school teacher “eighteen or nineteen years earlier” 

accrued at the time of the assault); Doe v. Howe Military Sch., 227 F.3d 981, 989 (7th Cir. 2000) 

(Title IX claim accrued at the time the former students were sexually abused and harassed by their 

instructor, school employees, and other students because the plaintiffs “remembered the events of 

abuse, and therefore nothing prevented them from asserting their claims during the two years after 

they reached majority”); Clifford v. Regents of Univ. of Cal., No. 2:11-CV-02935-JAM, 2012 WL 

1565702, at *6 (E.D. Cal. Apr. 30, 2012), aff’d, 584 F. App’x 431 (9th Cir. 2014) (Title IX claim 

accrued when alleged sexual assault, harassment, and hazing occurred); Johnson v. Gary E. Miller 

Canadian Cty. Children’s Juvenile Justice Ctr., No. CIV-09-533-L, 2010 WL 152138, at *3 (W.D. 

Okla. Jan. 14, 2010) (plaintiffs “impliedly concede[d]” that Title IX claim “had to have accrued at 

the time [the former student] was a student at the [school]” because “the Complaint alleges that 

the inappropriate and sexual relationship between [the former student] and . . . the school 

employee[] occurred while she was a student”); Singleton v. Chicago Sch. Reform Bd. of Trustees 

of Bd. of Educ. of City of Chicago, No. 00C395, 2000 WL 777925, at *19 (N.D. Ill. June 13, 2000) 

(Title IX claims accrued at time principal harassed or discriminated against former teacher because 

plaintiff “knew or should have known that her rights were being violated at the time in which she 

was subjected to such alleged violations”); Monger v. Purdue Univ., 953 F. Supp. 260, 264 (S.D. 

Ind. 1997) (Title IX claim “accrued when [the student] knew or had reason to know of her injury—

October 29, 1997[,]” the date her professor allegedly “sexually harassed her by touching her 

against her will on various parts of her body and indicating that he wanted to be with her 

privately”).
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continue to be afraid to see doctors to this day . . . .” FAC ¶ 165.

• There were “widespread and repeated complaints of Dr. Strauss’s conduct.” Id. ¶ 231. 

Allegations Common To All Student-Athlete Plaintiffs’ Awareness 

• Dr. Strauss’s “notoriously hands-on examinations earned him different nicknames over the 

years, including ‘Dr. Jelly Paws,’ ‘Dr. Drop-Your-Drawers,’ ‘Dr. Nuts,’ and ‘Dr. Cough.’” 

These were nicknames well-known by OSU . . . student athletes.” Id. ¶¶ 115-116.

• “For decades, Dr. Strauss was a fixture in the locker rooms, showers, and saunas of Larkins 

Hall, the former student and faculty recreation center on the Ohio State campus that housed 

the wrestling, gymnastics, and swimming teams. . . . Dr. Strauss would shower with athletes 

after workouts at the Larkins facility, and had his locker in the students’ locker room. Dr. 

Strauss generally showered multiple times daily—a shower with each team—where he 

would wash himself while staring at the showering athletes. On many occasions, Dr. 

Strauss would postpone performing medical treatments after practice so that he could 

shower with the wrestling team. Dr. Strauss also scheduled his showers so that he could 

view his favorite athletes naked.” Id. ¶¶ 118, 131-134. 

• “A former OSU wrestling coach described Larkins Hall as a ‘cesspool of deviancy,’ saying 

‘Coaching my athletes in Larkins Hall was one of the most difficult things I ever did.’ 

Student athletes were regularly harassed in Larkins Hall by sexually aggressive men who 

attended the university or worked there: ‘The voyeurs would masturbate while watching 

the wrestlers shower or sit in the sauna, or engage in sexual acts in the areas where the 

athletes trained, the former wrestlers said. The situation was so egregious that former 

wrestling head coach Russ Hellickson would at times have to physically drag the gawkers 

out of the building[.]’” Id. ¶¶ 119-120. 

• “Student athletes also pleaded with the University administration to make changes to 

Larkins Hall to protect student athletes. During the 1994-1995 season, two wrestlers met 

with then-Athletic Director Andy Geiger (“AD Geiger”) in his office. The wrestlers 

complained about the voyeuristic and lewd conduct of the men in the lockers and saunas 

of Larkins Hall. They specifically complained of Dr. Strauss’s conduct. They presented 

AD Geiger with drawings of changes to the wrestling and gymnastics locker room that they 

believed would enhance safety and privacy for student athletes.” Id. ¶¶ 121-123. 

• During Dr. Strauss’s physical examinations of student athletes, “Dr. Strauss forced male 

student athletes to undress from the waist down and submit to invasive and medically 

unnecessary examinations, during which he would touch and fondle their genitalia and 

digitally penetrate their anuses . . . . There was no medical necessity for Dr. Strauss’s 

examination, touching, and fondling of male athletes’ genitalia or digital anal penetration 

during the required periodic physical examinations—Dr. Strauss did it for his own 

personal, sexual gratification.” Id. ¶¶ 139-140. 

• “Regardless of the ailment, Dr. Strauss’s treatment of male student athletes almost always 

included examination, touching, and fondling of their genitalia, and it frequently included 
10

digital anal penetration.” Id. ¶ 154. 

• “Some athletes saw it as the price of getting treatment. Ohio State forced student athletes 

to make a chilling decision: either seek treatment from Dr. Strauss and submit to his 

molestation or forego treatment and live with illness or injury. Athletes had to receive 

physicals before competing, whether or not they were injured, which meant that systematic 

sexual abuse from Dr. Strauss was inevitable under the Devil’s bargain Ohio State forced 

them to make with themselves. With their collegiate athletic careers and scholarships on 

the line, many athletes sought treatment from Dr. Strauss for their physical conditions, at a 

high cost to their mental and emotional health.” Id. ¶¶ 157-160.

• “[S]ome of the athletes were ‘uncomfortable’ with [Dr. Strauss] showering with them[.]” 

Id. ¶ 171. 

Plaintiffs termed the above allegations “Factual Allegations Common to All Counts.” Id.

at pg. 16. Plaintiffs also realleged and incorporated these allegations into their Title IX claims. Id. 

at ¶ 247. 

In regard to allegations specific to a particular plaintiff, plaintiffs alleged the following: 

Plaintiff Brian Garrett’s Awareness 

• “Brian graduated from OSU with a Bachelor of Science in Nursing degree in 1996. He 

attended the graduate nursing program (nurse practitioner major) at OSU in 1997 and 1998. 

He completed his Master of Science in Nursing degree at the University of Cincinnati 

(switched majors to nurse anesthesia as OSU did not offer this major) in 2003. He is 

currently employed as a Certified Registered Nurse Anesthetist.” Id. at ¶ 17. 

• “Brian was sexually assaulted, battered, molested, and/or harassed by Dr. Strauss at an offcampus health clinic in 1996.” Id. at ¶ 18. 

• While Brian was working at Dr. Strauss’s off-campus health clinic in the fall of 1996, Dr. 

Strauss “removed [a] patient’s pants and began to heavily fondle the patient’s penis and 

testicles until the patient achieved an erection. The patient turned bright red; Brian 

presumes the patient was embarrassed. . . . Dr. Strauss continued to fondle the patient until 

the patient ejaculated. Brian was shocked by what he witnessed. Dr. Strauss then 

instructed Brian to retrieve tissues so that Dr. Strauss could clean up the ejaculation. . . . 

Brian recalls feeling uneasy about the incident . . . .” Id. at ¶¶ 34-38. 

• “Later that same day, Dr. Strauss asked Brian if he had any ailments. Brian complained to 

Dr. Strauss that he was experiencing severe heartburn. Dr. Strauss offered to examine and 

treat Brian. . . . Dr. Strauss then unexpectedly removed Brian’s pants and began fondling 

his genitalia. . . . Brian was in shock. He immediately left the clinic and never returned. . 

. . .” Id. at ¶¶ 39-41. 
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Plaintiff Ed Gonzalez’s Awareness 

• “Plaintiff Ed Gonzalez is a . . . former student-athlete on OSU’s track team. Ed was sexually 

assaulted, battered, molested, and/or harassed by Dr. Strauss during examinations in the 

1990s.” Id. ¶ 56. 

• “When Ed was an incoming freshman, he was directed to Dr. Strauss for a physical. Dr. 

Strauss had Ed remove his clothing and Dr. Strauss stared at Ed’s testicles, during which 

time Dr. Strauss put his face very close to Ed’s genitals and appeared to be attempting to 

conceal an erection. Dr. Strauss then massaged Plaintiff Gonzalez’s chest for an 

inappropriate amount of time and commented that he had ‘large pecs for a hurdler.’” Id. 

¶¶ 57-59.

Plaintiff Kent Kilgore’s Awareness 

• “Plaintiff Kent Kilgore is . . . a former student athlete on OSU’s swim team. Ken was 

sexually assaulted, battered, molested, and/or harassed by Dr. Strauss during examinations 

in the 1980s.” Id. ¶ 60. 

• “When Kent was an incoming freshman, on partial scholarship for swimming, he was 

directed to Dr. Strauss for a physical. Dr. Strauss used no gloves. Dr. Strauss examined 

his anal region and inserted his finger in Kent’s rectum. Dr. Strauss fondled Kent’s genitals 

and held his penis ‘in his hand and played with it like playdough.’ While at OSU, Kent 

had two ‘physicals’ by Dr. Strauss, and has not had a physical since.” Id. at ¶¶ 61-64. 

Plaintiff Adam Plouse’s Awareness 

• “Plaintiff Adam Plouse is . . . a former student athlete on OSU’s wrestling team. Adam was 

sexually assaulted, battered, molested, and/or harassed by Dr. Strauss during examinations 

in the 1990s.” Id. ¶ 66. 

• “Beginning his freshman year, he was warned by upperclassmen about Dr. Strauss, and 

tried to keep his distance.” Id. ¶ 68. 

• “Nevertheless, when Adam was a freshman, he was directed to Dr. Strauss for a physical 

where he endured an extensive and inappropriate hernia check.” Id. ¶ 69. 

• “On many occasions in Larkins Hall, Dr. Strauss watched Adam shower in a way that made 

Adam uncomfortable.” Id. ¶ 70. 

John Doe Plaintiffs’ 1-35 Awareness 

• Each John Doe plaintiff alleges he was a “former student-athlete” participating on an Ohio 

State athletic team and/or a student who “attended Ohio State,” and was “sexually 

assaulted, battered, molested, and/or harassed by Dr. Strauss during his time at OSU.” Id. 

¶¶ 71-105. 
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• “A former OSU gymnast, and Plaintiff herein, specifically recalls any time he saw Dr. [sic] 

for a medical issue, whether it was an annual physical, a broken bone, or an ear infection, 

he was required to disrobe and endure an extended and uncomfortable examination of his 

lower body.” Id. ¶ 155. 

• “One Plaintiff went to the campus health clinic with what he believed was strep throat. Dr. 

Strauss required him to disrobe, and ultimately fondled him to erection and ejaculation. 

The student had to remind Dr. Strauss to do the strep swab before leaving.” Id. ¶ 162. 

• “One Plaintiff saw Dr. Strauss at the OSU health center in the 1990s for burning with 

urination. Dr. Strauss digitally penetrated his anus, under the guise of checking his prostate, 

and commented ‘Don’t worry, this sometimes makes guys ejaculate.’ On a follow-up visit, 

Dr. Strauss fondled the student to ejaculation. []” Id. at ¶ 163. 

Plaintiffs also plead the following determinative facts: Dr. Strauss stopped working at Ohio 

State in 1998 and died in 2005, and Larkins Hall was demolished in 2005. Id. at ¶¶ 21, 112, 129. 

Taken as true, the above facts demonstrate that the two-year statute of limitations for 

plaintiffs to bring their Title IX claims expired in 2000 at the latest. See id. at ¶¶ 112, 237 (alleging 

most recent act of abuse occurred in 1998). Plaintiffs did not file their initial Complaint until July 

26, 2018. See Complaint (Doc. # 1). Thus, plaintiffs’ Title IX claims were filed eighteen (18) 

years after the applicable two-year statute of limitations had expired. As a matter of law, their 

claims are time-barred and should be dismissed with prejudice. See Giffin, 1999 WL 238669 at 

*1-2 (affirming dismissal of Title IX claim that “was filed after the two-year statutory period had 

run”); American Pipe & Const. Co., 414 U.S. at 554. 

To the extent plaintiffs seek to argue they were unaware “that Dr. Strauss’s conduct was 

. . . sexual assault” or constituted sexual abuse, such argument improperly seeks to blur the concept 

of discovering an injury with the concept of discovering that a particular injury may give rise to a 

Title IX claim. See FAC at ¶¶ 47, 201. A Title IX claim “accrues on the date when the plaintiff 

knew, or through reasonable diligence should have known, of an injury giving rise to [his] cause 

of action.” Bowling, 2017 WL 4512587, at *1; Anderson, 616 F. Supp. 2d at 668 (“The statute of 

limitations commences to run when the plaintiff knows or has reason to know of the injury which 
13

is the basis of his action”). “Otherwise stated, ‘[a] plaintiff’s action accrues when he discovers 

that he has been injured, not when he determines that the injury was unlawful.’” Anderson, 616 

F. Supp. 2d at 668 (quoting Amini v. Oberlin College, 259 F.3d 493, 600 (6th Cir. 2001)); see also

Twersky, 993 F. Supp. 2d at 440 (“‘[D]iscovery of the injury, not discovery of the other elements 

of a claim, is what starts the clock,’” and this is true “regardless of how complex or difficult to 

discover the elements of the cause of action may be”). 

IV. LEAD PLAINTIFF AND PUTATIVE CLASS REPRESENTATIVE BRIAN 

GARRETT FAILS TO STATE A TITLE IX CLAIM AGAINST OHIO STATE. 

 As discussed above, the Title IX claims of all plaintiffs are barred by the expiration of the 

statute of limitations. In addition to the statute of limitations, it appears from the face of the First 

Amended Complaint that the Title IX claim of lead plaintiff and putative class representative Brian 

Garrett has a further infirmity in that Ohio State cannot be liable because the alleged abuse 

occurred at Dr. Strauss’s privately owned and managed, off-campus clinic. See FAC (Doc. # 33) 

at ¶¶ 18, 33-41. 

In this regard, plaintiffs allege Dr. Strauss abused Mr. Garrett “two miles from campus” at 

an “off-campus” health clinic (Men’s Clinics of America) “ran” by “only one doctor—Richard 

Strauss”—“through a corporation he formed in 1996, Richard H. Strauss, M.D., Inc.,” after Ohio 

State “removed” and “ousted” Dr. Strauss as a treating physician from its on-campus student health 

center. Id. at ¶¶ 18, 21-22, 24-25. Mr. Garrett graduated from Ohio State in 1996. Id. at ¶ 17. He 

began working for the Men’s Clinics of America “in the fall of 1996.” Id. at ¶ 33. 

In the context of off-campus activities, the Sixth Circuit has held that “[w]hen conduct 

occurs at a school in another district or off school grounds entirely, the school district has control

over neither the harasser, nor the context.” Pahssen v. Merrill Cmty. Sch. Dist., 668 F.3d 356, 366 

(6th Cir. 2012); see also Lam v. Curators of the Univ. of Missouri at Kansas City Dental Sch., 122 
14

F.3d 654, 655-656 (8th Cir. 1997) (dental school was not liable under Title IX for instructor’s 

sexual assault of a dental student at the instructor’s “off-campus,” “independent,” “private dental 

practice that was not affiliated with the school”). 

V. PLAINTIFFS CANNOT RECOVER PUNITIVE DAMAGES. 

Plaintiffs seek an award of punitive damages against Ohio State. See FAC (Doc. # 33) at 

¶ 272 & ¶ (b) of Prayer for Relief. Punitive damages are not recoverable under Title IX as a matter 

of law. See Hart v. Paint Valley Local Sch. Dist., No. C2-01-004, 2002 WL 31951264, at *16 

(S.D. Ohio Nov. 15, 2002) (citing Barnes v. Gorman, 536 U.S. 181, 122 S.Ct. 2097, 2102–03, 153 

L.Ed.2d 230 (2002)); Mercer v. Duke Univ., 50 F. App’x 643, 644 (4th Cir. 2002) (“punitive 

damages are not available for private actions brought to enforce Title IX”). Therefore, plaintiffs’ 

request for punitive damages also should be dismissed with prejudice. 

VI. CONCLUSION. 

 Plaintiffs’ Title IX claims are barred by the applicable two-year statute of limitations 

because they are based on acts alleged to have been committed at least twenty (20) years ago, by 

a person who stopped working at Ohio State twenty (20) years ago and who died thirteen (13) 

years ago, and at a facility which was demolished thirteen (13) years ago. Additionally, plaintiffs 

cannot recover punitive damages under Title IX. For all of these reasons, plaintiffs’ First Amended 

Complaint should be dismissed with prejudice in its entirety. 

 
15

 Respectfully submitted, 

MICHAEL DeWINE 

ATTORNEY GENERAL OF OHIO 

By: /s/ Michael H. Carpenter 

Michael H. Carpenter (0015733) (Trial Attorney) 

Timothy R. Bricker (0061872) 

David J. Barthel (0079307) 

Stephen E. Dutton (0096064) 

CARPENTER LIPPS AND LELAND LLP 

280 Plaza, Suite 1300 

280 North High Street 

Columbus, OH 43215 

E-mail:carpenter@carpenterlipps.com

bricker@carpenterlipps.com

barthel@carpenterlipps.com

dutton@carpenterlipps.com

Special Counsel for Defendant The Ohio State 

University 

 
16

CERTIFICATE OF SERVICE 

I certify that a copy of the foregoing was filed electronically on November 9, 2018. Notice 

was sent by operation of the Court’s electronic filing system to all other counsel who have entered 

an appearance and any parties who have entered an appearance through counsel. The parties may 

access this filing through the Court’s ECF system. 

/s/ Michael H. Carpenter 

Trial Attorney for 

Defendant The Ohio State University