Page 1 - Defendants' Motion to Dismiss and Memorandum in Support 

70058004.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

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Michael Porter, P.C., OSB No. 003560 

mike.porter@millernash.com 

Michelle Barton Smigel, P.C., OSB No. 045530 

michelle.smigel@millernash.com 

MILLER NASH GRAHAM & DUNN LLP 

3400 U.S. Bancorp Tower 

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Fax: 503.224.0155 

Attorneys for Defendants 

Oregon State University and Mike Riley 

UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

EUGENE DIVISION 

KRISTIN SAMUELSON, 

Plaintiff, 

v. 

OREGON STATE UNIVERSITY, and 

MIKE RILEY, as an individual, 

Defendants. 

CV No. 6:15-cv-01648 

DEFENDANTS' MOTION TO DISMISS AND 

MEMORANDUM IN SUPPORT 

REQUEST FOR ORAL ARGUMENT 

Case 6:15-cv-01648-MC Document 6 Filed 10/27/15 Page 1 of 32
TABLE OF CONTENTS 

Page 

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MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

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I. INTRODUCTION ............................................................................................................. 1

II. ARGUMENT ..................................................................................................................... 2 

A. Plaintiff's Title IX Claim Should Be Dismissed (First Claim for Relief) .............. 2 

1. Title IX's history concerning damages for alleged sexual 

harassment.................................................................................................. 2 

2. When a plaintiff's complaint does not allege actual knowledge and 

control of the harasser and context of harassment, a Title IX claim 

cannot survive ............................................................................................ 5 

3. Plaintiff's allegations address an alleged off-campus sexual assault 

by a nonstudent .......................................................................................... 7 

4. Plaintiff's complaint does not state a claim for a Title IX violation .......... 8 

a. Plaintiff's complaint shows that OSU did not have 

sufficient control of the harasser or the context to state a 

Title IX claim ................................................................................. 8 

b. The complaint shows that plaintiff cannot establish actual 

knowledge of known sex harassment ............................................ 9 

c. Plaintiff's complaint shows that OSU did not subject her to 

harassment.................................................................................... 10 

d. Plaintiff's complaint shows that her claim is barred by the 

statute of limitations ..................................................................... 11 

B. Plaintiff's Substantive Due Process Claim Under Section 1983 Should Be 

Dismissed (Second Claim for Relief) .................................................................. 14 

1. Substantive due process liability standards for danger creation .............. 14 

2. Plaintiff's complaint shows that she cannot establish a substantive 

due process violation................................................................................ 17 

3. Riley is entitled to qualified immunity as a matter of law ....................... 17 

4. Plaintiff's complaint shows that the due process claim is barred by 

the statute of limitations ........................................................................... 19 

C. Plaintiff's Equal Protection Claim Under Section 1983 Should Be 

Dismissed (Third Claim for Relief) ..................................................................... 21 

1. Equal protection liability standards ......................................................... 21 

2. Plaintiff's complaint does not allege equal protection liability ................ 22 

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3. Riley is entitled to qualified immunity .................................................... 23 

4. Plaintiff's complaint shows that this claim is barred by the statute 

of limitations ............................................................................................ 24 

III. CONCLUSION ................................................................................................................ 24 

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TABLE OF AUTHORITIES 

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Cases 

Am. Pipe & Constr. Co. v. Utah, 

414 US 538, 94 S Ct 756, 38 L Ed 2d 713 (1974) ...................................................................11 

Ashcroft v. al-Kidd, 

563 US 731, 131 S Ct 2074, 179 L Ed 2d 1149 (2011) ...........................................................18 

Ashcroft v. Iqbal, 

556 US 662, 129 S Ct 1937, 173 L Ed 2d 868 (2009) ...............................................................2 

Belanus v. Clark, 

796 F3d 1021 (9th Cir 2015) ...................................................................................................19 

Cannon v. Univ. of Chicago, 

441 US 677, 99 S Ct 1946, 60 L Ed 2d 560 (1979) ...................................................................3 

Clifford v. Regents of Univ. of Cal., 

No. 2:11-CV-02935-JAM-GGH, 2012 WL 1565702 (ED Cal Apr. 30, 2012), 

aff'd, 584 F App'x 431 (9th Cir 2014) ........................................................................................6 

G.C. ex rel. Counts v. N. Clackamas Sch. Dist., 

654 F Supp 2d 1226 (D Or 2009) ......................................................................................21, 22 

Davis v. Monroe Cnty. Bd. of Educ., 

526 US 629, 119 S Ct 1661, 143 L Ed 2d 839 (1999) .............................................3, 4, 5, 9, 10 

DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 

489 US 189, 109 S Ct 998, 103 L Ed 2d 249 (1989) .........................................................15, 16 

Doe v. Round Valley Unified Sch. Dist., 

873 F Supp 2d 1124 (D Ariz 2012) .....................................................................6, 8, 15, 16, 18 

Doe v. Univ. of Pac., 

No. CIV. S-09-764 ...............................................................................................................5, 10 

Franklin v. Gwinnett Cnty. Pub. Schs., 

503 US 60, 112 S Ct 1028, 117 L Ed 2d 208 (1992) .................................................................3 

Funez ex rel. Funez v. Guzman, 

687 F Supp 2d 1214 (D Or 2009) ................................................................................15, 22, 23 

Gebser v. Lago Vista Indep. Sch. Dist., 

524 US 274, 118 S Ct 1989, 141 L Ed 2d 277 (1998) .............................................3, 5, 8, 9, 10 

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TABLE OF AUTHORITIES 

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J.M.O. v. Keesee, 

No. 3:14-cv-00834-MO, 2015 WL 2380944 (D Or May 19, 2015) ..................................12, 20 

L.W. v. Grubbs (Grubbs I), 

974 F2d 119 (9th Cir 1992) .....................................................................................................15 

Lukovsky v. City & Cnty. of San Francisco, 

535 F3d 1044 (9th Cir 2008) .............................................................................................19, 20

Mongeon v. City of Portland, 

No. 3:13-CV-2013-ST, 2015 WL 5129561 (D Or July 2, 2015), report and 

recommendation adopted as modified, 2015 WL 5130254 (D Or Sept. 1, 

2015) ........................................................................................................................................11 

Patel v. Kent Sch. Dist., 

648 F3d 965 (9th Cir 2011) ...............................................................................................16, 17 

Pergande v. Trumbo, 

No. 6:10 CV 6314-TC, 2013 WL 4083337 (D Or Aug. 7, 2013) ............................................18 

Plumhoff v. Rickard, 

____ US ____, 134 S Ct 2012, 188 L Ed 2d 1056 (2014) .......................................................18 

Reese v Jefferson Sch. Dist. No. 14J, 

208 F3d 736 (9th Cir 2000) .......................................................................................................5 

Roe v. St. Louis Univ., 

746 F3d 874 (8th Cir 2014) ...................................................................................................6, 9 

Sohal v. City of Merced Police Dep't, 

No. CV F 09-0160 AWI DLB, 2009 WL 961465 (ED Cal Apr. 8, 2009) .........................21, 23 

Stanley v. Trs. of Cal. State Univ., 

433 F3d 1129 (9th Cir 2006) .............................................................................................11, 12

Taylor v. Barkes, 

____ US ____, 135 S Ct 2042, 192 L Ed 2d 78 (2015) ...........................................................18 

Twersky v. Yeshiva Univ., 

993 F Supp 2d 429 (SDNY), aff'd, 579 F App'x 7 (2d Cir 2014), cert denied, 

135 S Ct 1702 (2015) 

................................................................................................................................13, 14, 20, 24 

Case 6:15-cv-01648-MC Document 6 Filed 10/27/15 Page 5 of 32
TABLE OF AUTHORITIES 

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Wyler v. Connecticut State Univ. Sys., 

2015 WL 1456750 (D Conn Mar. 30, 2015) .....................................................................21, 23 

Statutes 

20 USC § 1681(a) ........................................................................................................................2, 9 

42 USC § 1983 ...............................................................1, 11, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22 

ORS 12.110 ..............................................................................................................................11, 19 

Other Authorities 

62 Fed Reg 12,034 (Mar. 13, 1997) .................................................................................................5 

Fourteenth Amendment .................................................................................................................21 

Fed R Civ P 12(b)(6)........................................................................................................1, 2, 10, 23 

http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf ........................................5 

Revised Sexual Harassment Guidance: Harassment of Students by School 

Employees, Other Students, or Third Parties, 

http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf .....................................................5 

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Page 1 - Defendants' Motion to Dismiss and Memorandum in Support 

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LR 7-1 CERTIFICATE 

Counsel for defendants, Oregon State University ("OSU") and Mike Riley, 

conferred about the dispute with counsel for plaintiff through a telephone conference, but the 

parties have been unable to resolve the dispute. 

LOCAL RULE 7-2 CERTIFICATION 

This memorandum complies with the applicable word-count limitation under 

LR 7-2(b), 26-3(b), 54-1(c), or 54-3(e) because it contains 8,492 words, including headings, 

footnotes, and quotations, but excluding the caption, table of contents, table of cases and 

authorities, signature block, exhibits, and any certificates of counsel.

MOTION

In accordance with Fed R Civ P 12(b)(6), defendants, OSU and Mike Riley, move 

to dismiss the complaint because it fails to state a claim on which relief can be granted. 

MEMORANDUM

I. INTRODUCTION 

Neither Title IX of the Education Amendments of 1972 ("Title IX") nor 42 USC 

§ 1983 ("Section 1983") extends liability to a university or individual for an off-campus sexual 

assault by a nonstudent on the basis that the University allegedly should have taken certain 

action toward the assailant's cousin. But that is what plaintiff's complaint seeks to do. Under 

plaintiff's apparent theories, universities will have an entirely new duty to prevent crimes in areas 

over which they have no control and by individuals over whom they have no control or any 

relationship, and a plaintiff dissatisfied with a school's response to alleged sexual harassment 

could wait over a decade to file suit. The allegations of the complaint do not meet the standards 

to survive dismissal under Fed R Civ P 12(b)(6), and while OSU is saddened by the experiences 

described in plaintiff's complaint, the complaint shows that plaintiff is making untenable claims 

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on the merits and claims that are time-barred. The complaint's allegations demonstrate that OSU 

and Riley are entitled to dismissal and to judgment. 

II. ARGUMENT 

Plaintiff's claims assert that OSU and Riley are liable based on an off-campus 

rape of plaintiff by the cousin of an OSU student. The allegations assert liability based on the 

rape itself and because of OSU's alleged response to the student's report of alleged sexual 

misconduct. (Compl. ¶¶ 25, 28, 29, 31.) Under Fed R Civ P 12(b)(6), a claim does not survive 

unless the plaintiff's alleged grounds and entitlement to relief and the factual matter, while 

accepted as true, "'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 US 

662, 663, 129 S Ct 1937, 173 L Ed 2d 868 (2009) (quoting Bell Atlantic Corp. v. Twombly, 

550 US 544, 570, 127 S Ct 1955, 167 L Ed 2d 929 (2007)). Courts rely on "judicial experience 

and common sense" to determine whether the factual allegations "plausibly give rise to an 

entitlement to relief." Iqbal, 556 US at 679. Here, plaintiff's allegations, which focus on OSU 

and Riley's alleged knowledge that one OSU student would associate with a sexually violent 

nonstudent who would sexually assault another OSU student off its campus, do not plausibly 

lead to liability. 

A. Plaintiff's Title IX Claim Should Be Dismissed (First Claim for Relief). 

1. Title IX's history concerning damages for alleged sexual harassment. 

Congress enacted Title IX in 1972. It 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 USC § 1681(a).1

Title IX does not expressly provide a private right of action. In 1979, considering 

a claim of intentional gender discrimination in a university's admissions process, the Supreme 

 

1

 Title IX applies to recipients of federal funding. Many educational institutions are recipients, and defendants use 

the term "institutions" here in place of "recipients." 

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Court implied a private cause of action for victims of discrimination. Cannon v. Univ. of 

Chicago, 441 US 677, 709, 99 S Ct 1946, 60 L Ed 2d 560 (1979). In 1992, in Franklin v. 

Gwinnett Cnty. Pub. Schs., 503 US 60, 75, 112 S Ct 1028, 117 L Ed 2d 208 (1992), a case 

alleging coerced sex by a public school teacher toward a student, the Supreme Court held that 

money damages are available under Title IX's implied cause of action. 

In 1998, the Supreme Court again faced a Title IX harassment claim with facts 

similar to those alleged in Franklin—a public school teacher sexually harassing an eighth-grade 

student. Gebser v. Lago Vista Indep. Sch. Dist., 524 US 274, 118 S Ct 1989, 141 L Ed 2d 277 

(1998). The Supreme Court rejected vicarious liability theories advanced by the plaintiff in 

which she tried to hold the school district accountable through respondeat superior. 524 US at 

285. Gebser contains a thorough analysis of Title IX, recognizing that Congress's express 

regulatory enforcement scheme precludes administrative action without notice and an 

opportunity to come into compliance: 

"It would be unsound, we think, for a statute's express system of 

enforcement to require notice to the recipient and an opportunity to come into 

voluntary compliance while a judicially implied system of enforcement permits 

substantial liability without regard to the recipient's knowledge or its corrective 

actions upon receiving notice." Gebser, 524 US at 289. 

Thus, under Gebser, Title IX allows damages when a school has actual 

knowledge of harassment by teachers and the school is deliberately indifferent toward the known 

harassment. Gebser, 524 US at 277. 

The Supreme Court considered liability for peer sexual harassment in 1999 in 

Davis v. Monroe Cnty. Bd. of Educ., 526 US 629, 119 S Ct 1661, 143 L Ed 2d 839 (1999). 

There, presented with a fifth-grader who had been "the victim of a prolonged pattern of sexual 

harassment" perpetrated by a classmate at school, and a principal with actual knowledge who 

took virtually no steps to discipline the harasser (or even separate the two children), the Supreme 

Court ruled that "in certain limited circumstances" a school could be liable for deliberate 

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indifference for peer-on-peer harassment. Davis, 526 US at 633, 643. The "limited 

circumstances" arise only: 

• When the institution has substantial control over the alleged 

harasser. "[T]he set of parties whose known acts of sexual 

harassment can trigger some duty to respond on the part of the 

funding recipients" is "narrowly circumscribe[d]" by the language 

of Title IX and the "deliberate indifference" standard. "A recipient 

cannot be directly liable for its indifference where it lacks the 

authority to take remedial action." Davis, 526 US at 644. 

Recognizing the limits of control, the Court explained that "[a] 

university might not, for example, be expected to exercise the same 

degree of control over its students that a grade school would enjoy 

* * *." Davis, 526 US at 649. Explaining these contours, the 

Court indicated, "The fact that it was a teacher who engaged in 

harassment in Franklin and Gebser is relevant. * * * Peer 

harassment, in particular, is less likely to satisfy these requirements 

than is teacher student harassment." 526 US at 653. 

• When the harassment occurs "under" "the operations of" an 

educational institution recipient. Davis, 526 US at 645 (citing 

21 USC §§ 1681(a), 1687). This, the Court explained, meant that 

"the harassment must take place in a context subject to the school 

district's control." Id. The Davis Court "conclude[d] that 

recipients of federal funding may be liable for 'subject[ing]' their 

students to discrimination where the recipient is deliberately 

indifferent to known acts of student-on-student sexual harassment 

and the harasser is under the school's disciplinary authority." 

Davis, 526 US at 646-47. 

In Davis, the Supreme Court determined that a Title IX damages action against an 

institution would lie when the institution itself was subjecting a person to a hostile environment 

by ignoring a situation over which it had control—an elementary student harassing another 

elementary student. For liability to lie, the institution's deliberate indifference to harassment 

about which it has actual knowledge must "cause [students] to undergo harassment or make them 

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liable or vulnerable to it." Davis, 526 US at 644-45 (internal quotation marks and citations 

omitted).2 

2. When a plaintiff's complaint does not allege actual knowledge and control of the 

harasser and context of harassment, a Title IX claim cannot survive. 

Courts have applied Davis and Gebser and explained when allegations can 

constitute viable cognizable Title IX claims and when they cannot. 

In a recent case concerning an alleged sexual assault by three members of a 

basketball team, the Ninth Circuit affirmed application of the Davis factors, as articulated in 

Reese v Jefferson Sch. Dist. No. 14J, 208 F3d 736, 739 (9th Cir 2000), to affirm the district 

court's grant of summary judgment to University of the Pacific ("UOP"). Doe v. Univ. of Pac., 

No. CIV. S-09-764 FCD/KJN, 2010 WL 5135360, at *10 (ED Cal Dec. 8, 2010), aff'd, 467 F 

App'x 685 (9th Cir 2012). UOP did not have "actual knowledge" that any of the assailants in the 

case at issue had been involved in a previous campus sexual assault, and as a result, the claim 

based on UOP's causing a sexual assault could not survive summary judgment. Univ. of Pac., 

2010 WL 5135360, at *12. The district court pointed out that UOP could not subject the plaintiff 

to sexual harassment when it had no knowledge of the harasser's identity. Id. (citing Reese v. 

Jefferson Sch. Dist. No. 14J, 208 F3d 736, 740 (9th Cir 2000)). By definition, there is no actual 

knowledge in such a circumstance. 

 

2

 In 2001, the Office of Civil Rights ("OCR") of the United States Department of Education 

issued Revised Sexual Harassment Guidance: Harassment of Students by School Employees, 

Other Students, or Third Parties, http://www2.ed.gov/about/offices/list/ocr/docs/shguide.pdf. 

OCR described Davis and Gebser and stepped away from guidance standards set out in initial 

guidance in 1997, 62 Fed Reg 12,034 (Mar. 13, 1997), which had suggested that liability could 

be grounded on something less than actual notice and deliberate indifference. OCR indicated 

that its standards applied to administrative enforcement of Title IX, not damage actions such as 

this one. The Supreme Court has "never held * * * that the implied private right of action under 

Title IX allows recovery in damages for violation[s] of [various OCR regulatory] requirements." 

Gebser, 524 US at 292. In April 2011, OCR issued a Dear Colleague Letter concerning campus 

sexual violence, a "significant guidance document," also recognizing that damages lawsuits are 

evaluated under the court standards, not OCR's interpretations expressed through its guidance 

documents. http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201104.pdf. 

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Other courts have applied the Supreme Court's requirement that an institution 

must have "substantial control" over both the harasser and the context of the harassment. In Doe 

v. Round Valley Unified Sch. Dist., 873 F Supp 2d 1124 (D Ariz 2012), the court dismissed a 

Title IX claim against a school district based on student-to-student harassment when the 

harassment occurred off campus and the fund recipient had no control over off-campus activity. 

873 F Supp 2d 1124, 1136. The alleged harasser was both a student and the principal's son. But 

"the school did not exercise substantial control over the 'context' of [the harasser's] sexual 

conduct with [plaintiff]," which had allegedly occurred at a party off campus. 873 F Supp 2d 

at 1136. The court explained: "Although the * * * incident began at school with an invitation to 

go to lunch, it is not harassment to invite someone to lunch—and that is the only conduct over 

which the school might exercise substantial control." Id. Similarly, when faced with a student's 

allegation that he had been sexually harassed during an off-campus fraternity event, in granting a 

university's motion to dismiss, the Eastern District of California explained that "there are no facts 

alleged showing the University * * * had substantial control over the alleged harassers and the 

context in which the events occurred." Clifford v. Regents of Univ. of Cal., No. 2:11-CV-02935-

JAM-GGH, 2012 WL 1565702, at *7 (ED Cal Apr. 30, 2012), aff'd, 584 F App'x 431 (9th Cir 

2014) (citing Ostrander v. Duggan, 341 F3d 745, 750-51 (8th Cir 2003)). 

Other decisions conclude similarly: 

• Roe v. St. Louis Univ., 746 F3d 874, 884 (8th Cir 2014). The 

plaintiff alleged that she had been raped by another student in an 

off-campus apartment. And when the university did not have 

control over the context of the rape, the Eighth Circuit, affirming a 

grant of summary judgment for the university, stated: "The 

Supreme Court has made it clear * * * that to be liable for 

deliberate indifference under Title IX, a University must have had 

control over the situation in which the harassment or rape 

occurs." Id. 

• Tyrrell v. Seaford Union Free Sch. Dist., 792 F Supp 2d 601, 629 

(EDNY 2011). The plaintiff alleged that she had been sexually 

assaulted off campus by a nonstudent. "Although such conduct 

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may be objectively offensive and severe, and rise to the level of 

pervasiveness required under Title IX, Seaford UFSD did not, inter

alia, have control over either the alleged assailant or the context in 

which the conduct occurred. Accordingly, plaintiff cannot base 

any Title IX claim against the Seaford UFSD on the April 1, 2005 

incident itself." Id. 

• Mattingly v. Univ. of Louisville, No. 3:05CV-393-H, 2006 WL 

2178032, at *4 (WD Ky July 28, 2006). When the plaintiff was a 

student on a foreign trip with her school and had been raped off 

campus by an individual who was not a student or employee, the 

court found that the school could not be liable under Title IX. 

These cases and the principles of Title IX liability show that cases alleging claims 

like the Title IX claim alleged in this case are not viable. 

3. Plaintiff's allegations address an alleged off-campus sexual assault by a 

nonstudent. 

Plaintiff's allegations demonstrate that she cannot establish Title IX liability. Key 

allegations that the court at this stage must accept: 

 Plaintiff attended an off-campus party in 1999. (Compl. ¶ 8.) 

 Plaintiff was sexually assaulted off campus by the nonstudent cousin of a 

student on OSU's football team. (Compl. ¶¶ 8, 16.) 

 In October 1999, plaintiff thought OSU's response to her statements to a 

sexual assault counselor in Student Health Services dissuaded her from 

seeking help from OSU and from doing anything further to hold the alleged 

rapist accountable. (Compl. ¶¶ 10, 11.) 

 Plaintiff asserts that OSU had "actual knowledge of the substantial risk that 

Carlyle [the football player] would associate with other sexually violent males 

who would sexually harass OSU's female students at his apartment based 

upon prior conduct by Carlyle and his associates." (Compl. ¶ 25 (emphasis 

added).) 

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 Plaintiff was raped by Carlyle's cousin "as a result of OSU's deliberate 

indifference." (Compl. ¶ 29.) 

None of these allegations nor any others lead to a cognizable Title IX claim. 

4. Plaintiff's complaint does not state a claim for a Title IX violation. 

a. Plaintiff's complaint shows that OSU did not have sufficient control of the 

harasser or the context to state a Title IX claim. 

All of plaintiff's allegations relate to a nonstudent incident and to harassment that 

occurred off OSU's campus. This is the very type of claim that does not fall within the "narrowly 

circumscribed" type described by the Supreme Court, a case in which a school has control over 

both the harasser and the context of the harassment, such that it can be liable for gender 

discrimination. The allegations here are even more tenuous than a case such as Round Valley 

Unified Sch. Dist., 873 F Supp 2d 1124, a case in which the harasser was related to a school 

leader and initiated the harassment on campus and in which the plaintiff's Title IX claim 

was untenable. 

It simply does not meet the plausibility standard that OSU can be liable for the 

1999 rape of a student off campus by a student's cousin, as alleged by plaintiff. Allowing 

plaintiff to proceed under such an alleged set of facts would effectively make OSU responsible 

for the conduct of any person marginally connected to the school—the connection here is being 

related to someone who attends a university. A school is not even liable for the conduct of its 

teacher, a circumstance with a high degree of control and context, unless the school knows that 

the teacher is engaged in harassment and ignores it. See Gebser, 524 US at 277. The Supreme 

Court rejected respondeat superior liability in Title IX claims, but plaintiff is effectively asking 

the court to allow her to proceed on an in loco parentis theory against OSU, resulting in OSU's 

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having to somehow control not only its campus but off-campus residences and the conduct of 

nonstudents. Title IX requires far more control than alleged or can be alleged here. 

See Roe, 746 F3d at 874 (affirming summary judgment ruling based in part on control when 

allegations related to off-campus conduct—in that case by a student, unlike the allegations here). 

That plaintiff cannot allege control is problematic with respect both to allegations 

concerning alleged indifference to the football player's actions the year before plaintiff's assault 

and to allegations about OSU's response to the reported assault. Title IX precludes a school from 

excluding participation in, denying benefits of, or subjecting to discrimination in programs or 

activities on the basis of gender. 20 USC § 1681(a). As evident from Gebser, Davis, and their 

progeny, Title IX does not make institutions responsible agencies for sexual assault or responses 

to it arising in circumstances beyond which they have control over the context and harasser. 

Creating damages liability on these allegations would take Title IX damages liability far beyond 

the "certain limited circumstances" under which the Supreme Court has indicated an institution 

may be civilly liable. 

b. The complaint shows that plaintiff cannot establish actual knowledge of 

known sex harassment. 

To state a cognizable claim for peer harassment under Title IX, the complaint 

allegations must indicate that OSU had actual knowledge of sexual harassment. Plaintiff's claim 

that she was raped by a football player's cousin is based on alleged actual knowledge of conduct 

by the football player, not conduct by the cousin—the harasser. Thus, the "actual knowledge" 

that plaintiff is really alleging is alleged actual knowledge that the football player would 

associate with other sexually violent males, not actual knowledge of the harasser's conduct. 

(Compl. ¶ 25.) This is not the type of actual knowledge that leads to liability. It is plain that 

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liability under Gebser and Davis and decisions interpreting them is actual knowledge that the 

harasser will harass and ignoring it. 

The actual knowledge requirement of a Title IX claim must be read in conjunction 

with the requirements of control over the harasser and control over the context of the harassment, 

as well as the requirement that the institution causes harassment. There is no allegation that 

OSU had actual knowledge of the player's cousin's having ever engaged in harassing conduct, 

and the complaint is built around a theory that OSU need not have any such knowledge. This 

critical lack of a basis for liability also demonstrates that the Title IX claim should be dismissed 

under Fed R Civ P 12(b)(6). 

c. Plaintiff's complaint shows that OSU did not subject her to harassment. 

As the Supreme Court explained in Davis, an institution's deliberate indifference 

must cause harassment or make a student more vulnerable to harassment, which occurred in 

Davis because the school knew of the harasser and subjected the plaintiff to harassment by 

ignoring concerns raised by the plaintiff about him. No facts in plaintiff's complaint can 

plausibly be read to allege that OSU's alleged indifference to the player's situation a year earlier 

caused harassment by the player's cousin or made plaintiff more vulnerable to off-campus 

harassment by a nonstudent. As a matter of law, OSU could not have made plaintiff more 

vulnerable to harassment by a nonstudent simply by (allegedly) failing to address his cousin's 

conduct. See Univ. of Pac., 2010 WL 5135360, at *12 ("when the school is not actually aware of 

the harassment or the harassers' identities until after the school year was over, it cannot be 

deemed to have subjected the plaintiff to the harassment"). If plaintiff's allegations show OSU 

subjected plaintiff to harassment, then OSU would conceivably be liable for any male the player 

might associate with. And even if OSU had expelled the player, an off-campus sexual assault by 

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his cousin would not be conduct OSU subjected a person to. Plaintiff's allegations that 

demonstrate OSU could not have caused harassment provide yet another basis for dismissal. 

d. Plaintiff's complaint shows that her claim is barred by the statute of 

limitations. 

Because Title IX does not have an express statute of limitations, courts "borrow 

the most appropriate state statute of limitations." Stanley v. Trs. of Cal. State Univ., 433 F3d 

1129, 1134 (9th Cir 2006) (internal quotation marks and citations omitted). In the case of both 

civil rights and Title IX claims, the "borrowed" statute of limitations is the state's statute of 

limitations for personal injury. Id. Statutes of limitations, of course, have a purpose: they "are 

'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.'" Am. Pipe & Constr. Co. v. Utah, 

414 US 538, 554, 94 S Ct 756, 38 L Ed 2d 713 (1974) (quoting Order of R.R. Telegraphers v. 

Ry. Express Agency, 321 US 342, 348-49, 64 S Ct 582, 88 L Ed 788 (1943)). 

In Oregon, the statute of limitations for personal injury is two years. ORS 12.110; 

see, e.g., Mongeon v. City of Portland, No. 3:13-CV-2013-ST, 2015 WL 5129561, at *5 (D Or 

July 2, 2015), report and recommendation adopted as modified, 2015 WL 5130254 (D Or 

Sept. 1, 2015) (statute of limitations for Section 1983 action is the personal injury statute of 

limitations, which is two years in Oregon under ORS 12.110(1)). Accordingly, the statute of 

limitations on plaintiff's Title IX claim is two years. Plaintiff's claim is plainly barred because 

her claims arise from an alleged injury in 1999, and she filed her complaint in 2015. (Compl. 

¶¶ 8, 10.) 

Title IX does not include a discovery rule with respect to statutes of limitations, 

but even if it did, the discovery rule would be unavailing to plaintiff. While federal courts 

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borrow from state law for an applicable statute of limitations on Title IX claims, federal law 

governs when the claim accrues. Stanley, 433 F3d at 1136 (quoting Hoesterey v. City of 

Cathedral City, 945 F2d 317, 319 (9th Cir 1991)). Under federal law, the "touchstone for 

determining the commencement of the limitations period is notice: 'a cause of action generally 

accrues when a plaintiff knows or has reason to know of the injury which is the basis of his 

action.'" Id. (quoting Cline v. Brusett, 661 F2d 108, 110 (9th Cir 1981)). 

Earlier this year, this court explained and applied the federal discovery rule to a 

Section 1983 claim. J.M.O. v. Keesee, No. 3:14-cv-00834-MO, 2015 WL 2380944, at *2 (D Or 

May 19, 2015). There, the plaintiff brought claims against an individual police officer and the 

City of Sherwood, alleging that when he had reported abuse by the officer's wife, the individual 

officer used his position to retaliate against the plaintiff. J.M.O., 2015 WL 2380944, at *1. The 

plaintiff believed that the city defendant repeatedly condoned the officer's actions. Although the 

events at issue all occurred before 2009, the complaint was not filed until 2014. 2015 WL 

2380944, at *2. The plaintiff argued that his claim did not accrue until 2013, when he spoke to a 

detective in the Tigard Police Department and realized that he had a "legally cognizable" injury 

against the defendants. Id. Under the federal discovery rule, a "'claim accrues' not just when the 

plaintiff experiences the injury, but 'when the plaintiff knew or in the exercise of reasonable 

diligence should have known of the injury and the cause of that injury.'" Id. (quoting Lukovsky v. 

City & Cnty. of San Francisco, 535 F3d 1044, 1048-50 (9th Cir 2008)). The plaintiff's claim 

accrued, the court held, at the moment the alleged misconduct occurred, because the plaintiff 

knew at that time that he had been injured and the perpetrator's identity. Id. The court 

summarized: "The test for accrual is not when the plaintiff knew or should have known that he 

had a legally cognizable injury and its cause, but rather when the plaintiff knew or should have 

known about the injury and its cause," and distinguished hidden injury in cases such as those 

involving asbestos or contaminated water. Id.

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Faced with the same argument that plaintiff is setting up here based on allegations 

related to reading about another student in the media, a federal district court held that former 

students' Title IX claims against a private high school and its administrators accrued at the time 

the abuse occurred, not when—years later—a school administrator admitted in a newspaper 

interview that administrators had been aware of the risk of sexual abuse at the time it was 

occurring. Twersky v. Yeshiva Univ., 993 F Supp 2d 429 (SDNY), aff'd, 579 F App'x 7 (2d Cir 

2014), cert denied, 135 S Ct 1702 (2015). There, plaintiffs alleged that abuse was known to the 

school and its administrators before additional acts of abuse occurred, and that the school and its 

administrators took no action to remedy that abuse, which allowed the additional abuse to occur. 

993 F Supp 2d at 435. Although the alleged abuse had taken place many years earlier, the 

plaintiffs argued that "they could not have known about the defendants' awareness of the sex 

abuse at [the school] until the length and extent of the cover up was first presented in [a 2012 

newspaper article with a school administrator]." 993 F Supp 2d at 436 (internal quotation marks 

and citation omitted). 

The Second Circuit affirmed the district court's ruling that the plaintiffs' Title IX 

claim was time-barred by the statute of limitations. Although the court noted that it is uncertain 

that the statute of limitations includes a discovery rule, it found it unnecessary to decide this, 

because "plaintiffs' Title IX claims fail even under the discovery rule." Twersky, 993 F Supp 2d 

at 439. "[I]n applying a discovery accrual rule, [the Supreme Court] ha[s] been at pains to 

explain that discovery of the injury, not discovery of the other elements of a claim, is what starts 

the clock." Id. (quoting Rotella v. Wood, 528 US 549, 555, 120 S Ct 1075, 145 L Ed 2d 1047 

(2000)). Accordingly, although the plaintiffs alleged that "they were unaware that the school 

defendants had injured them, and unable with reasonable diligence to discover the school 

officials' deliberate indifference to 'actual knowledge' that school employees posed a substantial 

risk of sexually abusing students" until the administrator's interview, the court held that this was 

not sufficient to delay accrual of the plaintiffs' claims. 993 F Supp 2d at 440. Stating that "[t]his 

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argument confuses knowledge of the existence of a legal right with knowledge of injury, 

contrary to the Supreme Court's teaching * * *," the court held that because the plaintiffs were 

"aware of their abuse at the time it occurred, and of the identity of their abusers and those who 

employed them," they had the relevant facts for purposes of Title IX claim accrual. Id. Thus, 

the Title IX claim was barred by the statute of limitations. 

Here, to the extent that plaintiff alleges deliberate indifference discovered only 

after she read media accounts about another situation, any argument that her claim is not barred 

is unavailing. First, plaintiff asserts that in October 1999, she reported the assault, which she 

alleges occurred at an apartment "where some OSU football players lived," and that OSU's 

alleged response "caused plaintiff to feel even more shame, humiliation, and emotional distress," 

"dissuaded [plaintiff] from seeking any further help from OSU," and caused her to do nothing 

more. (Compl. ¶ 8, 10.) Although plaintiff alleges that she did not know the perpetrator of the 

assault, that is not the question in this case. In this case, plaintiff is suing OSU, claiming that 

OSU injured her based on deliberate indifference to sexual misconduct. Her allegations plainly 

reveal her knowledge that OSU's alleged indifference occurred in October 1999: "OSU's sexual 

assault counselor's words, inaction, and blame" dissuaded her from seeking help. (Compl. ¶ 11.) 

This is the gravamen of plaintiff's claim, which is based on her alleged injury from an assault 

and shows that she cannot overcome the statute-of-limitations hurdle that is evident from 

her complaint. 

B. Plaintiff's Substantive Due Process Claim Under Section 1983 Should Be Dismissed 

(Second Claim for Relief). 

1. Substantive due process liability standards for danger creation. 

Plaintiff's second claim for relief asserts that Riley violated her substantive due 

process rights because the assailant's cousin was a member of the football team whom, she 

alleges, Riley should have treated differently following an incident involving someone else the 

year before. To prevail against Riley, plaintiff must show that he acted under color of state law 

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and deprived plaintiff of a particular right. L.W. v. Grubbs (Grubbs I), 974 F2d 119, 120 (9th Cir 

1992). The allegations do not meet the plausibility standard and are barred by the statute of 

limitations in any event. 

The particular right alleged by plaintiff is a substantive due process right to bodily 

integrity. (Compl. ¶ 43.) As a general rule, the Due Process Clause does not impose liability on 

a state actor for failing to protect an individual from harm by a third party. DeShaney v. 

Winnebago Cnty. Dep't of Soc. Servs., 489 US 189, 195, 109 S Ct 998, 103 L Ed 2d 249 (1989). 

An exception exists allowing for substantive due process violations if a plaintiff can show that a 

defendant's action under color of state law "'affirmatively places the plaintiff in a position of 

danger, that is, where [the] action creates or exposes an individual to a danger which he or she 

would not have otherwise faced.'" Funez ex rel. Funez v. Guzman, 687 F Supp 2d 1214, 1227 

(D Or 2009) (quoting Johnson v. City of Seattle, 474 F3d 634, 639 (9th Cir 2007), and rejecting 

generalized assertions about violence among children being a known danger). To allege a 

cognizable due process claim under an affirmative danger-creation theory, a plaintiff must 

plausibly (not just in conclusory terms) allege that (a) an unusually serious risk of harm existed; 

(b) the defendant had actual knowledge of (or at least willful blindness to) the risk; and (c) the 

defendant failed to take "'obvious steps'" to address the known risk. 687 F Supp 2d at 1228 

(quoting L.W. v. Grubbs (Grubbs II), 92 F3d 894, 900 (9th Cir 1996)). As described in Funez, 

the claim requires the actor to affirmatively place the plaintiff "in a 'unique, confrontational 

encounter' with a violent criminal." Id. (quoting Johnson v. Dallas Indep. Sch. Dist., 38 F3d 198, 

202 (5th Cir 1994)). Cases applying these requirements demonstrate that substantive due process 

claims arise when the risk and danger creation are specific and obvious, not under generalized 

notions of risk, and that claims such as the one alleged here are subject to dismissal. 

In 2012, Arizona's federal district court dismissed a student's Section 1983 

substantive due process claim against a school principal, based on alleged sexual harassment and 

assault by another student. Round Valley Unified Sch. Dist., 873 F Supp 2d at 1135. The 

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plaintiff alleged that the principal knew that her abuser—who was also the principal's son—had 

previously raped two other girls, but that he had failed to take measures to protect the student 

body from his son. Applying DeShaney, the court found that the student's allegations did not 

meet the "affirmative conduct" element required to sustain a Section 1983 "danger creation" 

claim. 873 F Supp 2d at 1132. Quoting the Ninth Circuit, the court reiterated that "the 

government actor must 'affirmatively create * * * an actual, particularized danger [that the 

plaintiff] would not otherwise have faced.'" Id. (quoting Kennedy v. City of Ridgefield, 439 F3d 

1055, 1063 (9th Cir 2006)). It went on to say that "there is no 'affirmative act' when a 

government official allows a dangerous situation to develop or continue without intervention—

even if the official affirmatively chooses not to intervene." 873 F Supp 2d at 1133. Continuing 

in this vein: 

"Plaintiffs' complaint repeatedly accuses [the principal] of failing to do anything 

to protect the school community from [the perpetrator's] behavior, leaving [the 

perpetrator] free to seek sex from other girls. That does not, in itself, qualify as 

an affirmative act necessary to state a § 1983 'state-created danger' claim. [The 

principal] had no federal constitutional duty to protect his students from a known 

danger." Id. 

The Ninth Circuit recently discussed at length the parameters of a Section 1983 

"danger creation" case, in the context of student-to-student sexual abuse while at school. Patel v. 

Kent Sch. Dist., 648 F3d 965 (9th Cir 2011). There, a high school student with a disability 

brought a claim under Section 1983 against her teacher (among others) for failing to supervise 

her when she went to the restroom, which resulted in sexual encounters with another student. Id. 

The Ninth Circuit granted summary judgment to the teacher because the "danger creation" 

exception to the "'general rule * * * that [a] state is not liable for its omissions'" did not apply. 

648 F3d at 971 (quoting Munger v. City of Glasgow Police Dep't, 227 F3d 1082, 1086 (9th Cir 

2000)). The court explained that the exception applied only both when there was "affirmative 

conduct" by the state that placed the plaintiff in danger and when the state acted with "deliberate 

indifference" to a "known or obvious" danger. 648 F3d at 974. In Patel, the court did not reach 

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the first element because it found the absence of the second element dispositive: although the 

teacher knew about the plaintiff's propensity to become engaged in inappropriate sexual 

encounters and was supposed to be ensuring that the plaintiff did not go anywhere unescorted, 

the Ninth Circuit still found that she had not acted with deliberate indifference. Id. The court 

explained that deliberate indifference is "'a stringent standard of fault, requiring proof that a 

municipal actor disregarded a known or obvious consequence of his action'" and "requires a 

culpable mental state." Id. (quoting Bryan Cnty. v. Brown, 520 US 397, 410, 117 S Ct 1382, 

137 L Ed 2d 626 (1997)). Because the teacher had not acted "in a manner contrary to assisting 

someone in a known, immediate danger," she was not liable to the plaintiff under Section 1983. 

648 F3d at 975. Thus, although discussing the deliberate indifference standard, Patel's reasoning 

also emphasizes the affirmative act requirement: disregard of an obvious consequence of action. 

2. Plaintiff's complaint shows that she cannot establish a substantive due process 

violation. 

Plaintiff's allegations, summarized in paragraph 41 of the complaint, do not 

remotely approach the affirmative act of affirmatively creating danger, but instead focus on an 

alleged culture problem that did not even involve the assailant. There is no Section 1983 liability 

here—it is not plausible that Riley could be liable for a due process violation. No allegation 

suggests that Riley knew the player's cousin and that he was a specific risk to plaintiff but that 

Riley nevertheless placed plaintiff in a dangerous position where she would encounter him and 

be raped. Instead the complaint, other than conclusory allegations, is premised on alleged 

omissions concerning someone other than the assailant. It cannot be an obvious consequence of 

an allegedly inadequate response to one person's actions that a relative of the person will commit 

a violent crime. No particularized danger can be gleaned from the complaint's allegations, nor 

can any act by Riley that he placed the plaintiff in a situation to face a particularized danger. 

Riley would somehow have to know (or it would an obvious risk) that by not undertaking a 

specific disciplinary response toward the player, the player's cousin would sexually assault 

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plaintiff. That Riley's response to a player could result in liability for a constitutional deprivation 

based on the player's cousin's actions toward a person, a person that there is no allegation Riley 

knew, does not comport with common sense and unsurprisingly does not square with viable 

substantive due process claims. The substantive due process claim against Riley does not state a 

claim and should be dismissed. 

3. Riley is entitled to qualified immunity as a matter of law. 

Because the claim is against Riley in his individual capacity, he is entitled to 

qualified immunity from plaintiff's Section 1983 claim. Ashcroft v. al-Kidd, 563 US 731, 131 S 

Ct 2074, 179 L Ed 2d 1149 (2011) (quoting Malley v. Briggs, 475 US 335, 341, 106 S Ct 1092, 

89 L Ed 2d 271 (1986)). A plaintiff must overcome qualified immunity, and must plead that a 

clearly established constitutional right existed, so that an official is on notice that his conduct 

could lead to personal monetary liability. Al-Kidd, 131 S Ct at 2080 (quoting Harlow v. 

Fitzgerald, 457 US 800, 818, 102 S Ct 2727, 73 L Ed 2d 396 (1982)) ("Qualified immunity 

shields federal and state officials from money damages unless a plaintiff pleads facts showing 

(1) that the official violated a statutory or constitutional right, and (2) that the right was 'clearly 

established' at the time of the challenged conduct."); Taylor v. Barkes, ____ US ____, 135 S Ct 

2042, 2044-45, 192 L Ed 2d 78 (2015). It is plaintiff's burden to show that a clearly established 

constitutional right existed. Pergande v. Trumbo, No. 6:10 CV 6314-TC, 2013 WL 4083337, 

at *2 (D Or Aug. 7, 2013) (citing Sorrels v. McKee, 290 F3d 965, 969 (9th Cir 2002)) ("The 

plaintiff bears the burden of showing that the right was clearly established."). 

Qualified immunity is "an immunity from suit rather than a mere defense to 

liability." Plumhoff v. Rickard, ____ US ____, 134 S Ct 2012, 2019, 188 L Ed 2d 1056 (2014) 

(internal quotation marks and citations omitted). Motions to dismiss are granted on the basis of a 

plaintiff's plain inability to overcome qualified immunity because an individual should not have 

to endure the litigation process unless the plaintiff will be able to demonstrate that he or she is 

not entitled to the immunity. See, e.g., Round Valley Unified Sch. Dist., 873 F Supp 2d at 1134-

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35 (court dismissed the plaintiff's Section 1983 student-to-student harassment claim against 

school principal because the right that the plaintiff alleged was not "clearly established" law such 

that qualified immunity protected principal from suit). And even if a clearly established right is 

at issue, pleaded facts must show unreasonable conduct in light of the clearly established right. 

Again, plaintiff's allegations demonstrate as a matter of law that she cannot meet 

the particularized affirmative "danger creation" required to prove her claim. Moreover, no case 

now, let alone before 1999 (the period in which plaintiff asserts that Riley violated her 

substantive due process rights), clearly establishes that a campus official could be liable for not 

taking enough action against a student so that the official is liable if another person, who is not a 

student but simply related to the student, allegedly commits a crime against the plaintiff. The 

court need not reach the issue of qualified immunity because the facts pleaded show that plaintiff 

does not state a substantive due process claim and cannot prevail. But even if one simply 

assumes that plaintiff theoretically pleaded some sort of due process claim, she cannot overcome 

Riley's qualified immunity because no facts alleged can be interpreted to suggest that Riley acted 

unreasonably in light of clearly established law. 

4. Plaintiff's complaint shows that the due process claim is barred by the statute of 

limitations. 

As with Title IX, Section 1983 claims borrow the relevant state's statute of 

limitations for personal injury claims, which is ORS 12.110. Belanus v. Clark, 796 F3d 1021, 

1025 (9th Cir 2015) (quoting Wilson v. Garcia, 471 US 261, 280, 105 S Ct 1938, 85 L Ed 2d 254 

(1985)) (lower court correctly applied the state's three-year statute of limitations governing 

actions "for an injury to the person or reputation of any person"). ORS 12.110 provides a twoyear statute of limitations for personal injury actions. Accordingly, like her Title IX claim, 

plaintiff's Section 1983 claim has a two-year statute of limitations. 

In Lukovsky, 535 F3d at 1048, the plaintiffs alleged that they were not hired 

because of their race, but that they did not find out until years later that less qualified individuals 

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of a different race were hired; it was then that plaintiffs realized that they had been discriminated 

against. They argued that for purposes of claim accrual, "knowledge of 'injury' includes both the 

actual injury (failure to hire) and the legal wrong (racial discrimination)." Id. The Ninth Circuit 

disagreed, holding that the plaintiffs' injury occurred when they "knew they had been injured and 

by whom." 535 F3d at 1051. The fact that they did not learn of the "legal injury" until years 

later did not prevent their Section 1983 claims from accruing. Because of this, the plaintiffs' 

claims were time-barred. 

As explained in greater detail above, Oregon's federal district court applied 

Lukovsky to a Section 1983 claim earlier this year, and ultimately dismissed the plaintiff's claim 

because it was time-barred. J.M.O., 2015 WL 2380944. There, the plaintiff's claim accrued 

when he knew of his injury and knew the perpetrator of his injury, not when he "knew or should 

have known that he had a legally cognizable injury and its cause." 2015 WL 2380944, at *2. 

Thus, the question here is when plaintiff knew she was injured and that her injury could relate in 

some way to OSU and people who worked for it. 

As explained with respect to the Title IX claim, plaintiff alleges that she had 

concerns about OSU's response to sexual assault in 1999, and thus she knew, or in the exercise of 

reasonable diligence could have known, that she could pursue a claim related to alleged sexual 

misconduct, which is the injury forming the basis of her substantive due process claim. As in 

Twersky (a lawsuit against a school and against individual defendants), when a plaintiff is 

allegedly rebuffed in response to a situation involving sexual harassment, the "circumstances put 

[a plaintiff] on at least inquiry notice as to administrators' knowledge of and indifference to other 

abuse." Twersky, 579 Fed App'x at 10 (following principle that a plaintiff should seek legal 

advice when a plaintiff discovers or reasonably should discover enough facts that would prompt 

seeking legal advice). Plaintiff alleges that the event she claims precipitates liability—the sex 

assault—occurred at a house "where some OSU football players lived." (Compl. ¶ 8.) Yet she is 

suing the football coach from the previous year 16 years later. Likewise, J.M.O. was a claim 

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against individuals and the city—the plaintiff asserting a belief that the city condoned 

misconduct only after learning information from an officer. Plaintiff's substantive due process 

claim should be dismissed not only because it is substantively deficient, but also because it is 

untimely. 

C. Plaintiff's Equal Protection Claim Under Section 1983 Should Be Dismissed (Third 

Claim for Relief). 

Plaintiff's third claim is an equal protection claim against Riley. It, too, should be 

dismissed. 

1. Equal protection liability standards. 

To plead a viable equal protection claim, a plaintiff must show that "defendants 

acted with an intent or purpose to discriminate against her based on her membership in a 

protected class," and gender is a protected class. G.C. ex rel. Counts v. N. Clackamas Sch. Dist., 

654 F Supp 2d 1226, 1251 (D Or 2009) (citing Lee v. City of Los Angeles, 250 F3d 668, 686 (9th 

Cir 2001)). Then plaintiff must "also show that she was treated differently from similarly 

situated students." 654 F Supp 2d at 1251 (citing Estate of Macias v. Ihde, 219 F3d 1018, 1028 

(9th Cir 2000)). When the plaintiff is a female student alleging an equal protection violation 

against the school, the plaintiff must "sho[w] that defendants treated plaintiff differently from 

similarly situated male[s]." Id. And "the plaintiff prosecuting a claim under Fourteenth 

Amendment Equal Protection has the burden to 'prove a chain of causation from animus to 

injury.'" Sohal v. City of Merced Police Dep't, No. CV F 09-0160 AWI DLB, 2009 WL 961465, 

at *4 (ED Cal Apr. 8, 2009) (quoting Hartman v. Moore, 547 US 250, 259, 126 S Ct 1695, 164 L 

Ed 2d 441 (2006)). Even a supervisor of a person who commits a harassing act can only be 

liable if the supervisor has personal involvement in the harassment such that there is an 

"affirmative causal link between inaction by the supervisory defendant and [the plaintiff's] 

injury." See Wyler v. Connecticut State Univ. Sys., 2015 WL 1456750 *11 (D Conn Mar. 30, 

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2015)(dismissing equal protection claim against individual defendant when individual defendant 

did not have actual knowledge of subordinate employee's sexual harassment). 

This court has addressed the parameters of an equal protection claim against 

individual state actors when a student harassed another. G.C. ex rel. Counts, 654 F Supp 2d 

1226. There, the plaintiff, a minor with a disability, alleged that she had been sexually assaulted 

by another student, also developmentally delayed, and that he had previously sexually assaulted 

a different female student. Alleging that the school district and individuals employed by the 

school district had "failed to take adequate measures to prevent * * * subsequent assault or 

assaults" by the same male student, the plaintiff brought Section 1983 claims (among others) 

against both the school district and individuals employed by the school district, including a claim 

that all defendants had violated her right to equal protection. 654 F Supp 2d at 1229. "[T]he 

mere fact that plaintiff, a female, was allegedly assaulted and then allegedly raped by [the 

perpetrator], a male, after the alleged incident with [the first girl], does not, by itself, establish 

that [the individual defendants] acted, or failed to act, with the purposeful intent of 

discriminating against women." 654 F Supp 2d at 1252. The district court similarly dismissed 

an equal protection claim in Funez when the plaintiff generally alleged that a school allowed 

minority students to be unsupervised and the school district intentionally failed to remedy the 

risks associated with a lack of supervision because of the plaintiff's minority status. 687 F Supp 

2d at 1226. To succeed on a Section 1983 equal protection claim against individual state actors, 

plaintiff must show that the individual actors intentionally treated her differently from a similarly 

situated male because of her gender and that intentional treatment caused her injury. 

2. Plaintiff's complaint does not allege equal protection liability. 

Plaintiff's complaint describes an equal protection claim based not on animus 

toward plaintiff because of her gender or on treatment of plaintiff, but rather on Riley's alleged 

response to the student's conduct the previous year and broad-based alleged culture issues on the 

football team, some of which are attributed to others—such as assistant coaches. (Compl. ¶ 43.) 

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There is no allegation of any relationship or connection between Riley and plaintiff that could 

somehow create an individual discrimination claim, nor do the allegations do anything other than 

incorporate the faulty Title IX theories into an equal protection claim. As the Funez court found, 

"it is not clear how [an alleged racially motivated assault] resulted in the alleged violation of [the 

plaintiff's] right to equal protection." 687 F Supp 2d at 1226 (internal quotation marks and 

citation omitted). Plaintiff must prove that any alleged discrimination caused her damage—a 

chain of causation from animus to injury. See Sohal, 2009 WL 961465, at *4. As a matter of 

law, she cannot do so because the act—alleged off-campus violence by a third party—cannot 

legally be causally connected to alleged discrimination against plaintiff. Riley would not be 

liable as a supervisor of an employee without actual knowledge and personal involvement in an 

employee's harassment. Yet plaintiff is attempting to pin liability on Riley for conduct off 

campus of a person Riley has no tie to based on the fact that the person's cousin was on the 

football team that Riley coached. This does not approach the personal involvement required for 

Riley to be liable to plaintiff under an equal protection theory. See Wyler, 2015 WL 1456750 at 

*11. Riley cannot be responsible under a substantive due process theory, and plaintiff cannot use 

another theory to end-run the fundamental problem she faces—Riley cannot be liable for the 

criminal conduct by a third party—by framing the facts as an equal protection claim. The 

complaint does not state a claim for intentional and purposeful gender discrimination that injured 

plaintiff. This claim should be dismissed because the allegations do not state a claim under Fed 

R Civ P 12(b)(6). 

3. Riley is entitled to qualified immunity. 

As described above, Riley can be liable only if he acted unreasonably in light of 

clearly established law. Plaintiff's theory is that Riley is liable to her because of an alleged 

response to alleged harassment of another person. As with her substantive due process claim, 

there is no equal protection claim now, let alone a clearly established one. Nor was there in the 

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period in which plaintiff's claim allegedly arose as a result. Riley is entitled to qualified 

immunity, and plaintiff's third claim should be dismissed. 

4. Plaintiff's complaint shows that this claim is barred by the statute of limitations. 

As with plaintiff's other claims, her equal protection claim cannot overcome the 

fact that her alleged injury occurred in 1999 and she filed her lawsuit in 2015, 16 years later. 

The "circumstances put [a plaintiff] on at least inquiry notice as to administrators' knowledge of 

and indifference to other abuse." Twersky, 579 F App'x at 10. Here, plaintiff alleges in 

paragraph 8 that she was in an apartment that had the player's name on a football jersey and 

where football players lived at the time of the alleged assault. Also, in paragraph 10 she alleges 

that she did not engage in inquiring about the circumstances because of OSU's alleged response 

to the sexual assault. The injury that she claims to have suffered occurred in 1999. Under the 

alleged facts, plaintiff was on notice such that if OSU and administrators did not adequately 

respond to sexual assault and somehow intentionally discriminated against her because of her 

gender, she could pursue a claim. The equal protection claim is subject to dismissal because it is 

barred by the statute of limitations. 

III. CONCLUSION 

Campus sexual harassment and assault have received substantial additional 

attention since OCR issued its 2011 Dear Colleague Letter mentioned in footnote 2. Efforts 

concerning the subject have redoubled in recent years, and the media has reported on those 

efforts and the challenges faced by victims of sexual assault. But recent discussions, efforts to 

address sexual assault, and publicity do not make claims viable simply because they are about 

sexual assault, and they do not revive time-barred claims. 

OSU and Riley cannot lawfully be put in the position of trying to defend an 

alleged situation from 16 years ago based on the conduct of an individual with no relationship to 

OSU other than being related to a football player. OSU and Riley respectfully ask the court to 

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Page 25 - Defendants' Motion to Dismiss and Memorandum in Support 

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dismiss the complaint—the allegations do not state claims for which relief can be granted, and 

the complaint shows the claims are barred by the statute of limitations. 

DATED this 27th day of October, 2015. 

MILLER NASH GRAHAM & DUNN LLP 

/s/ Michael Porter 

Michael Porter, P.C. 

OSB No. 003560 

mike.porter@millernash.com 

Michelle Barton Smigel, P.C. 

OSB No. 045530 

michelle.smigel@millernash.com 

Telephone: 503.224.5858 

Fax: 503.224.0155 

Attorneys for Defendants Oregon State University 

and Mike Riley 

Case 6:15-cv-01648-MC Document 6 Filed 10/27/15 Page 31 of 32
 

Page 1 - Certificate of Service 

70058004.1 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW 

TELEPHONE: 503.224.5858 

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PORTLAND, OREGON 97204 

I hereby certify that I served the foregoing defendants' motion to dismiss and 

memorandum in support on: 

Ms. Katherine R. Heekin 

Ms. M. Diana Fedoroff 

The Heekin Law Firm 

808 S.W. Third Avenue, Suite 540 

Portland, Oregon 97204 

Telephone: 503.222.5578 

Fax: 503.200.5135 

E-mail: katherine@heekinlawoffice.com 

 diana@heekinlawoffice.com 

Attorneys for Plaintiff 

by the following indicated method or methods on the date set forth below: 

 CM/ECF system transmission. 

 E-mail. As required by Local Rule 5.2, any interrogatories, requests for 

production, or requests for admission were e-mailed in Word or WordPerfect 

format, not in PDF, unless otherwise agreed to by the parties. 

 Facsimile communication device.

 Overnight courier, delivery prepaid.

DATED this 27th day of October, 2015. 

/s/ Michael Porter 

Michael Porter, P.C., OSB No. 003560 

Of Attorneys for Defendants Oregon State 

University and Mike Riley

Case 6:15-cv-01648-MC Document 6 Filed 10/27/15 Page 32 of 32