Doe v. Northern Kentucky University et al
Filing
115
MEMORANDUM OPINION & ORDER: 1. Defendants' NKU, Mearns, Roberts, and James' motion to dismiss Counts II and V 82 be, and is hereby GRANTED, and said Counts are now dismissed as to those defendants. Count V remains pending as to De fendant Kachurek; 2. Section 1983 and common law claims against defendant Northern Kentucky University, be, and are hereby, DISMISSED as barred by the Eleventh Amendment. It is noted that Title IX claims remain; 3. Count VII of the FAC is dism issed as to the moving defendants, but remains pending as to defendant Kachurek; 4. The state defamation claim against defendant Kachurek (Count VI) remains, pending further orders of the Court; and 5. Count VIII seeking punitive damages against all defendants be, and is hereby DISMISSED, except for the punitive damages sought in the defamation claim against defendant Kachurek. Signed by Judge William O. Bertelsman on 11/03/2016.(KRB)cc: COR
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION AT COVINGTON
CIVIL ACTION NO. 2:16-CV-28 (WOB-JGW)
JANE DOE
VS.
PLAINTIFF
MEMORANDUM OPINION AND ORDER
NORTHERN KENTUCKY
UNIVERSITY, ET AL.
DEFENDANTS
This matter is before the Court on the motion by defendants
Northern
Kentucky
University,
Geoffrey
S.
Mearns,
Kathleen
Roberts, and Ann James for partial dismissal of plaintiff’s First
Amended Complaint (“FAC”).
(Doc. 82)
The Court finds oral argument unnecessary to resolve the
motion.
Substantive Due Process
Defendants move to dismiss Count II of the FAC, which alleges
constitutional violations under 42 U.S.C § 1983 for violation of
plaintiff’s “substantive due process right to bodily integrity”
and her “liberty interest.”
(FAC, Doc. 62, ¶¶ 121-28).1
In this context, establishing a “substantive due process”
claim requires proof that a defendant has taken action which “can
be
characterized
as
arbitrary,
or
conscious
shocking,
in
a
1
NKU is immune from this count because it is entitled to immunity
under the Eleventh Amendment. Therefore, this discussion applies
only to the individual defendants.
constitutional sense.”
Handy-Clay v. City of Memphis, 695 F.3d
531, 547 (6th Cir. 2012) (citation and internal quotation omitted).
Such
characterization
“applies
to
“only
the
most
egregious
official conduct, . . . conduct that is so brutal and offensive
that it [does] not comport with traditional ideas of fair play and
decency.” Id. at 547-48. Legions of cases support these criteria.
See, e.g., County of Sacramento v. Lewis, 523 U.S. 833, 847-48
(1998); Breithaupt v. Abram, 352 U.S. 432, 435-36 (1957); Rochin
v. California, 342 U.S. 165, 169-73 (1952).
Although the FAC alleges generally that such standards were
violated by the individual defendants, the facts set forth to
support
such
conclusion
constitutional standard.
an
entity
and
the
fall
far
short
of
meeting
the
The FAC alleges that the University as
individual
defendants
failed
to
implement
sanctions imposed on the accused student designed to keep him from
encountering plaintiff on campus.
No allegations are made that
the student physically harassed or injured plaintiff during these
encounters.
abuse,
it
Even when school officials fail to prevent verbal
has
been
held
that
the
stringent
standards
substantive due process violation have not been met.
for
a
See, e.g.,
Marcum v. Bd. of Educ. of Bloom-Carroll Local Sch. Dist., 727
F.Supp.2d 657, 673 (S.D. Ohio 2010).
As Marcum further points out, however, plaintiff can recover
under Title IX if such allegations are proved.
2
The Title IX
standards are not nearly as rigorous as the substantive due process
standards.
Proof
of
deliberate
indifference
under
Title
IX
“requires only that a single school administrator with authority
to take corrective action had actual knowledge of [the events sued
upon].”
Stiles v. Grainger County, 819 F.3d 834, 848 (6th Cir.
2016) (rejecting Title IX and substantive due process claims
against school for failure to prevent student-on-student bullying)
(citation omitted).2
Qualified Immunity
The Court further holds that, even if the above substantive
due process standards were met, the individual defendants are
entitled to qualified immunity.
“Qualified immunity” is a doctrine created by the Supreme
Court of the United States to provide an exemption from liability
for those public officials for inadvertently violating someone’s
constitutional rights.
Only individual defendants, rather than
governmental entities, such as cities and counties, can assert the
defense of qualified immunity.
Even
if
a
constitutional
right
has
been
violated,
an
individual defendant is entitled to qualified immunity if the right
was not “clearly established.”
Smith v. City of Wyoming, 821 F.3d
697, 708 (6th Cir. 2016) (citation omitted).
2
NKU is not immune from the Title IX claim.
3
The qualified
immunity analysis is a particularized one, that is, the court must
consider all the facts and circumstances surrounding the event
sued upon from the point of view of a reasonable person in the
same
situation
as
the
defendant.
Id.
at
709-10.
If
such
reasonable person would not have realized that his or her actions
violated a constitutional right of the plaintiff, the defendant is
entitled to qualified immunity.
Id. at 712.
An individual defendant sued under 42 U.S.C. § 1983 may raise
the defense of qualified immunity at the pleading stage, as the
movants here have done, although it is more typically raised at
the summary judgment stage.
See Moldowan v. City of Warren, 578
F.3d 351, 369 (6th Cir. 2009).
Whenever raised, the Court is
admonished to resolve the issue as soon as possible.
Callahan, 555 U.S. 223, 232 (2009).
Pearson v.
When the defense is raised at
the pleading stage the Court is “required to determine — prior to
permitting further discovery — whether [Plaintiff’s] complaint
alleged the violation of a constitutional right at all, and if so,
whether that right was clearly established at the time of the
alleged violation.”
Skousen v. Brighton High Sch., 305 F.3d 520,
527 (6th Cir. 2002) (extended discussion).
Applying these principles here, the Court finds that the
individual defendants are entitled to qualified immunity, even if
it were ultimately held that the FAC sufficiently alleges that
plaintiff’s
constitutional
rights
4
were
violated.
Reasonable
persons in their positions would not have realized that their
actions, as alleged in the FAC, would have violated plaintiff’s
substantive due process right to bodily integrity.
It is not
clearly established that this right could be violated absent
physical contact.
See, e.g., Doe v. Big Walnut Local Sch. Dist.
Bd. Of Educ., 837 F.Supp.2d 742, 751-52 (S.D. Ohio 2011) (holding
that the fundamental right to bodily integrity does not extend to
“verbal taunting” or bullying).
Plaintiff admits in her brief that no court has held that
such a claim may be maintained absent allegations of physical
contact.
Although
“existing
precedent
a
case
must
directly
have
in
point
placed
may
the
not
exist,
statutory
or
constitutional question confronted by the official beyond debate.”
Plumhoff v. Rickard, 134 S. Ct. 2012, 2023 (2014) (internal
quotations and citation omitted) (emphasis added).
As stated, no
such precedent has been cited by plaintiff or found by the Court,
much
less
establishing
the
principle
advocated
by
plaintiff
“beyond debate.”
Therefore, the moving defendants are entitled to qualified
immunity on the substantive due process claim.3
3
Defendant Kachurek did not join in the other defendants’ motion
for partial dismissal and did not file his own motion to
dismiss. Therefore, the Court’s rulings will be applicable to
only the moving defendants. If Kachurek wishes to have claims
against him dismissed, he should file an appropriate motion.
5
First Amendment Claim - Count V
Similarly, the FAC fails to allege facts showing a violation
by
Mearns
of
plaintiff’s
assembly and free speech.
First
Amendment
right
to
peaceable
The allegations are that plaintiff was
engaging in a peaceable demonstration to protest the University’s
failure
to
protect
harassment.
female
students
from
sexual
violence
and
She further alleges that the NKU police brought a
police dog to the demonstration.
Notably, plaintiff does not allege that the demonstration was
broken up, or that anyone was arrested or attacked in the course
of the demonstration.
These facts do not constitute a First Amendment violation,
or, if they do, defendants would be entitled to qualified immunity
under the principles discussed above.
Plaintiff also alleges that Kachurek wrote an e-mail stating
the rules governing campus demonstrations.
(FAC ¶ 102, 141).
It
is not alleged, however, that the e-mail deterred plaintiff from
participating
in
the
freedom of expression.
demonstration
or
otherwise
impugned
her
Nor is it alleged that the email stated
anything that was not correct.
As to defendant Mearns, plaintiff alleges that he stated in
an email of his own that Kachurek’s e-mail was “well-intended.”
6
(FAC ¶ 149).
This email was sent after the demonstration.
To say
that someone’s action was “well intended” implies that it was
probably ill-advised, even though it may have been “well intended.”
Therefore,
the
Court
finds
that
neither
e-mail
violated
plaintiff’s First Amendment rights or, if it did, defendant Mearns
is entitled to qualified immunity.
Breach of Contract
Count VII of the FAC alleges a claim for breach of contract
against defendants based on NKU’s Code of Student Rights and
Responsibilities.
The Court doubts that the student code constitutes a contract
at all, but it need not reach that issue because this claim fails
for
other
reasons.
“fundamental
that
As
an
to
the
officer
individual
of
a
defendants,
corporation
will
it
is
not
be
individually bound when contracting as an agent of that corporation
within the scope of his employment.”
Potter v Chaney, 290 S.W.2d
44, 46 (Ky. 1956) (citation omitted).
Cases cited by plaintiff
creating an exception to this rule are inapplicable because no
individual defendant gave any personal guarantee or expressly
agreed to be individually liable under the code.
As
to
Amendment.
NKU
itself,
the
claim
is
by
the
Eleventh
See Experimental Holdings, Inc. v. Farris, 503 F.3d
514, 520-21 (6th Cir. 2007) (citing
Halderman, 465 U.S. 89, 117-21 (1984)).
7
barred
Pennhurst State Sch. v.
While plaintiff argues that such immunity was waived by NKU’s
removal of this case under Lapides v. Bd. Of Regents, 535 U.S. 613
(2002), that argument is misplaced.
Here, plaintiff has a valid
federal claim against NKU — Title IX — and it did not waive its
immunity in state court prior to removal.
apply.
Lapides thus does not
See Kentucky Mist Moonshine, Inc. v. Univ. of Kentucky,
Civil Action No. 5:15-385-DCR, at *5 (E.D. Ky. June 23, 2016)
(rejecting
argument
that
UK
waived
its
Eleventh
Immunity
by
removing case to federal court) (Reeves, J.).
Therefore, Count VII will be dismissed as to the moving
defendants.
THEREFORE, THE COURT BEING ADVISED, IT IS ORDERED AS
FOLLOWS:
1. Defendants’ NKU, Mearns, Roberts, and James’s motion
to dismiss Counts II and V (Doc. 82) be, and is hereby,
GRANTED, and said Counts are now dismissed as to those
defendants.
Count V remains pending as to defendant
Kachurek;
2. Section 1983 and common law claims against defendant
Northern Kentucky University, be, and are hereby,
DISMISSED as barred by the Eleventh Amendment.
noted that the Title IX claims remain;
8
It is
3. Count VII of the FAC is dismissed as to the moving
defendants,
but
remains
pending
as
to
defendant
Kachurek;
4. The state defamation claim against defendant Kachurek
(Count VI) remains,
pending further orders
of the
Court; and
5. Count
VIII
seeking
punitive
damages
against
all
defendants be, and is hereby, DISMISSED, except for
the punitive damages sought in the defamation claim
against defendant Kachurek.
This 3rd day of November, 2016.
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