Chestang v. Alcorn State University et al

Filing 62

ORDER granting in part and denying in part 46 Motion to Dismiss; granting in part and denying in part 47 Motion for Summary Judgment; granting in part and denying in part 56 Motion to Dismiss Signed by Honorable David C. Bramlette, III on 5/11/2011 (nr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
RUDY CHESTANG, III

PLAINTIFF

VERSUS

CIVIL ACTION NO: 5:10-cv-67-DCB-JMR

ALCORN STATE UNIVERSITY; ALCORN
STATE UNIVERSITY BOARD OF TRUSTEES;
AND DR. ALVIN SIMPSON, INDIVIDUALLY
AND IN HIS OFFICIAL CAPACITY

DEFENDANTS

ORDER
This cause comes before the Court on Defendant Alvin Simpson’s
Motion to Dismiss, or In the Alternative, Motion for Summary
Judgment [docket entry nos. 46 and 47] and Motion to Dismiss for
Lack of Subject Matter Jurisdiction and/or Failure to State a Claim
Upon Which Relief Can Be Granted [docket entry no. 56].
carefully

considered

said

Motions,

the

Responses

Having
thereto,

applicable statutory and case law, and being otherwise fully
advised in the premises, this Court finds and orders as follows:
I.

FACTS AND PROCEDURAL HISTORY

Plaintiff, Rudy Chestang, III, was a student at Alcorn State
University from the fall of 2005 through the spring of 2008.
Defendant Alvin Simpson apparently served as Chestang’s advisor and
taught a class in which Chestang was enrolled in the spring of
2008.1

1

Chestang alleges that Simpson sexually harassed him by

The Complaint does not specify when the alleged harassment
occurred but exhibits to the Complaint and to Simpson’s Motion
indicate that Chestang was a student of Simpson’s in the spring of
2008 and thus the alleged harassment must have occurred then.

making suggestive comments and, on one occasion, rubbing against
him, until Chestang eventually withdrew from Alcorn and transferred
to another university.
Chestang filed suit against Alcorn, its Board of Trustees, and
Dr. Simpson, both individually and in his official capacity, on
June 10, 2009 in the United States District Court for the Northern
District of Illinois. The District Court for the Northern District
of Illinois transferred the action to this Court on April 19, 2010.
The

Complaint

asserts

claims

for

sexual

harassment

and

discrimination in violation of Title IX of the Education Act of
1972, 20 U.S.C. § 1681, et seq.; violation of due process and equal
protection under 42 U.S.C. § 1983; and intentional infliction of
emotional distress, negligence, and assault and battery under state
law.

Chestang did not serve Simpson with a copy of the Complaint

until October 27, 2009, 139 days after the Complaint was filed.
Simpson filed a Motion to Dismiss, or in the Alternative a
Motion for Summary Judgment on April 23, 2010 arguing that he had
not been properly served with the Complaint; that Title IX claims
cannot be asserted against an individual; and that the state law
claims had not been exhausted as required by the Mississippi Tort
Claims Act.

Simpson filed a second Motion to Dismiss on June 20,

2010 urging dismissal because he is immune from suit in his
official capacity based on the Eleventh Amendment; Section 1983
claims do not lie against persons in their official capacity; the

2

facts as alleged do not state claims for violation of due process
or equal protection; and the state law claims are time-barred,
procedurally bared, or otherwise inactionable under the Mississippi
Tort Claims Act.
II.

STANDARD FOR MOTION TO DISMISS

When considering a motion to dismiss under Rule 12(b)(6), the
district court must accept all well-pleaded facts as true and view
the facts in a light most favorable to the plaintiff.
Putnal,

75

F.3d

190,

196

(5th

Cir.

1996).

The

Baker v.

plaintiff’s

“[f]actual allegations must be enough to raise a right to relief
above the speculative level.”
U.S. 544, 555 (2007).

Bell Atlantic Corp. v. Twombly, 550

The Supreme Court has stated that “[t]o

survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that
is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949
(2009)(citations

omitted).

To

have

facial

plausibility,

the

plaintiff must plead “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. “[W]here the well-pleaded facts do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged-but it has not ‘show[n]’‘that the pleader is entitled to relief.’” Id. at 1950 (citing Fed.
R. Civ. P. 8(a)(2)).
“[O]nce

a

claim

has

been

3

stated

adequately,

it

may

be

supported

by

allegations

showing

in

the

any

set

of

complaint.”

facts

consistent

Twombly,

550

U.S.

with

the

at

546.

Furthermore, “a well-pleaded complaint may proceed even if it
strikes

a

savvy

judge

that

actual

proof

of

those

facts

is

improbable, and ‘that a recovery is very remote and unlikely.’” Id.
(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1914)(overruled on
other grounds)).
II. ANALYSIS
A.

Failure to Properly Serve Complaint
Simpson argues that the Complaint should be dismissed for

insufficient service of process pursuant to Federal Rule of Civil
Procedure 4(m) because it was served on him more than 120 days
after the Complaint was filed.

That Rule provides:

If a defendant is not served within 120 days
after the complaint is filed, the court - on
motion or on its own after notice to the
plaintiff - must dismiss the action without
prejudice against that defendant or order that
service be made within a specified time. But
if the Plaintiff shows good cause for the
failure, the court must extend the time for
service for an appropriate period.
Fed. R. Civ. P. 4(m).

Chestang does not dispute that Simpson was

served more than 120 days after the Complaint was filed (139 days
to be exact); instead, he argues that good cause exists to excuse
timely service because Simpson received notice of the lawsuit and
a copy of the Complaint through his attorneys in connection with

4

Chestang’s request that Simpson waive service.2 The exact sequence
of events is unclear from the record before the Court but it
appears that Chestang’s attorney, Brian Nix, mailed a copy of the
Complaint and a request that Simpson waive service to Michael
Bonner, an attorney for Simpson, around the same time the Complaint
was filed on June 10, 2009.

Shortly therafter, on July 6, 2009, an

attorney named Alan Purdie wrote to Nix, stating that Purdie
represented

Simpson

for

purposes

of

Chestang’s

correspondence should be addressed to Purdie.

suit

and

any

In that July 6

letter, Purdie further informed Nix that:
Simpson advises he has not been served with
process of the Court, and I am advised that
you provided his private attorney, Mike
Bonner, esquire, with a copy of the complaint
and a waiver.
Before waiving process, I
wanted to inquire as to whether you would
agree to transfer venue of this action to the
proper court in Mississippi.

2

With respect to the issue of timeliness of service only, the
Court treats Simpson’s Motion as a Motion for Summary Judgment
pursuant to Rule 56 because the parties have attached to their
papers materials outside the pleadings.
Kaufman v. Robinson
Property Group, L.P., 661 F.Supp.2d 622, 624-25 (N.D. Miss.
2009)(holding that a motion to dismiss is converted to a motion for
summary judgment if a court considers matters outside the
pleadings).
Summary judgment is apposite “if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is entitled
to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). Here,
the parties do not dispute the facts; indeed, there is a clear
written record of the correspondence between the parties regarding
service. Instead, the parties dispute the legal effect of those
facts and thus resolution of this issue on summary judgment is
appropriate.
5

July 6, 2009 letter [docket entry no. 58-2]. Nix then responded to
Purdie that he was unable to agree to transfer of the case to
Mississippi but did not mention service.
never

agreed

to

transfer

the

case

to

The parties apparently
Mississippi

(it

was

transferred only after the Illinois court granted Simpson’s Motion
to Transfer which Chestang opposed) or for Simpson to waive service
of process.

Chestang then served Simpson on October 27, 2009,

outside the time permitted for service of process under the federal
rules.
Rule 4(m) permits a district court to dismiss a case without
prejudice if the plaintiff fails to serve the defendant within 120
days of filing the complaint. Millan v. USAA Gen. Indemn. Co., 546
F.3d 321, 325 (5th Cir. 2008)(citing Thompson v. Brown, 91 F.3d 20,
21 (5th Cir. 1996)).

If, however the plaintiff can establish good

cause for failing to serve the defendant, the court must extend the
time for service.

Id.

Good cause requires “at least as much as

would be required to show excusable neglect, as to which simple
inadvertence or mistake of counsel or ignorance of the rules
usually does not suffice.”
299 (5th Cir. 1995).

Lambert v. United States, 44 F.3d 296,

Here, the Court finds that Chestang cannot

establish good cause for failing to serve Simpson.

Chestang’s

attorney, Nix, wrote to Simpson’s former attorney, Bonner, and to
Simpson’s present attorney, Purdie, requesting that Simpson waive
service.

Purdie specifically informed Nix that Simpson would not

6

agree to waive service unless Chestang agreed to transfer the venue
to Mississippi.

Accordingly, Nix was undoubtedly aware that

Simpson had not agreed to waive service of process.

Moreover, the

fact that Nix requested that Simpson waive process indicates that
he knew that service (or waiver) was required.
to meet that requirement.
failure.

Nix simply failed

He has not shown good cause for that

Gonzales v. Thomas Built Buses, Inc., 268 F.R.D. 521,

526-27 (M.D. Penn. 2010)(holding plaintiff did not shown good cause
for failure to serve where sent request to defendant to waive
service and defendant refused).
Even if the plaintiff lacks good cause (as is the case here),
the court has discretionary power to extend the time for service.
Millan,

546

F.3d

at

325.

A

discretionary

extension

may

be

warranted, “for example, if the applicable statute of limitations
would bar the refiled action, or if the defendant is evading
service or conceals a defect in attempted service.”

Id. (quoting

Fed. R. Civ. P. 4(m) advisory committee’s note (1993)).

Here, the

Complaint does not state when the events that form the basis of
this lawsuit allegedly occurred but the Court surmises that they
occurred primarily in the spring of 2008.

As it is now the spring

of 2011, the Court finds that the statutes of limitations on most
of Chestang’s claims likely have run. See B.L. Develop. Corp., 940
So.2d 961, 964-65, 67 (Miss. Ct. App. 2006)(holding one-year
statute of limitations governs claims for assault and battery and

7

intentional infliction of emotional distress arising out of sexual
harassment); Cuvillier v. Taylor, 503 F.3d 397, 401 (Miss. 2007)
(holding 1983 suits borrow from the forum state’s general personal
injury limitations period which, in Mississippi, is three years);
Menard v. Bd. of Trustees of Loyola Univ., 2004 WL 856641, *6
(E.D.La. 2004)(looking to Louisiana law for statute of limitations
on Title IX claim; presumably Title IX claims in Mississippi would
borrow

the

three-year

Mississippi

general

personal

injury

limitations period).
Where

the

applicable

statute

of

limitations

likely

bars

further litigation, the Fifth Circuit reviews dismissals for want
of service of process under the heightened standard used to review
a dismissal with prejudice.

Millan, 546 F.3d at 326.

Dismissals

with prejudice are warranted only where “‘a clear record of delay
or contumacious conduct by the plaintiff’ exists and a ‘lesser
sanction would not better serve the interests of justice.’” Id.
(quoting Gray v. Fid. Acceptance Corp., 634 F.2d 226, 227 (5th Cir.
1981)).

Additionally,

where

the

Fifth

Circuit

has

affirmed

dismissals with prejudice, it has generally found at least one of
three aggravating factors: (1) delay caused by the plaintiff
himself

and

not

his

attorney;

(2)

actual

prejudice

to

the

defendant; or (3) delay caused by intentional conduct. Id. (citing
Price v. McGlathery, 792 F.2d 472, 474 (5th Cir. 1986)). Here, the
Court finds that there exists neither a clear record of delay and

8

contumacious conduct nor any of the relevant aggravating factors to
justify dismissal.

First, the delay in service was minimal.

As

noted, the plaintiff served Simpson 139 days after the filing of
the Complaint, a mere 19 days late.
that

“clear

delay”

must

be

“longer

The Fifth Circuit has held
than

a

few

months”

and

“characterized by significant periods of total inactivity.” Id. at
327.

Second,

while

Chestang’s

attorney

was

negligent,

“contumacious conduct” requires something significantly more, such
as a “stubborn resistance to authority.”

There is no evidence of

such conduct here. Lastly, none of the “aggravating factors” exist
with

respect

Indeed,

it

to

is

Chestang’s

hard

to

failure

imagine

how

to

timely

Simpson

serve

could

Simpson.

have

been

prejudiced by the failure of service since the record is clear that
he received a copy of the Complaint shortly after the lawsuit was
filed.

In sum, this Court holds that although Chestang has not

shown good cause for his failure to serve Simpson, the Court will
nonetheless exercise its discretionary powers under Rule 4(m) to
grant an extension of time for service.

Accordingly, the Court

finds that service was timely and denies Simpson’s Motion to
Dismiss the Complaint pursuant to Rule 4.
B.

Title IX Claims
Simpson next argues for dismissal of Chestang’s Title IX

claims because such claims cannot be asserted against individuals.
Chestang makes no response to Simpson’s argument in this regard.

9

Nevertheless, it is clear that Title IX permits actions only
against “programs or activities that receive federal financial
assistance” and not against individuals.

Allegria v. Texas, 2007

WL 3256586, *6 (S.D. Tex. 2007)(citing Rowinsky v. Bryan Ind. Sch.
Dist., 80 F.3d 1006, 1012-13 (5th Cir. 1996)).

Accordingly,

Chestang’s claims against Simpson under Title IX must be dismissed.
C.

State Law Claims
Simpson next argues that Chestang’s state law claims should be

dismissed for failure to comply with the Mississippi Tort Claims
Act (“MTCA”), Miss. Code Ann. § 11-46-11(1), which requires that
plaintiffs file a notice with the chief executive officer of the
governmental entity to be sued ninety days prior to filing suit.
Chestang did not respond to Simpson’s argument in this regard and
thus apparently concedes that he failed to comply with the MTCA’s
notice requirement.

The Mississippi Supreme Court has held that

the “notice of claim requirement imposes a condition precedent on
the

right

to

prerequisite.

maintain

an

action”

and

is

a

jurisdictional

Gale v. Thomas, 759 So.2d 1150, 1159 (Miss. 1999).

Accordingly, Chestang’s claims under Mississippi state law are
procedurally barred and must be dismissed.
D.

Id.

Section 1983 Claims
Once the Title IX and state law claims against Simpson are

dismissed, the only remaining claims are those Chestang asserts
under 42 U.S.C. § 1983 for violation of due process and of equal
10

protection.

Chestang asserts claims against Simpson in both his

official and individual capacities.
i.

Official Capacity Claims

Simpson moves to dismiss the official capacity claims against
him both on the grounds that he is immune from suit under the
Eleventh Amendment and because § 1983 claims do not lie against
arms of the state or people sued in their official capacity.

The

Court need not reach the Eleventh Amendment issue because Simpson
is correct that a § 1983 claim does not lie against him in his
official capacity.

In the context of a § 1983 claim, a suit

against a state official in his or her official capacity is not a
suit against the official but is a suit against the official’s
“office.” Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71
(1989); see also Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)
(“Official-capacity suits ... generally represent only another way
of pleading an action against an entity of which an officer is an
agent.”) (citations omitted). Accordingly, Chestang’s § 1983 claim
against Simpson in his official capacity is treated as a claim
against Alcorn State.
only for “persons.”

But the Civil Rights Act creates liability

42 U.S.C. § 1983.

A state is not a “person”

within the meaning of § 1983 and thus a § 1983 claim does not lie
against a State.

Will, 491 U.S. at 71 (1989).

University is an arm of the State of Mississippi.

Alcorn State
Senu-Oke v.

Jackson State Univ., 521 F.Supp.2d 551, 556 (S.D. Miss. 2007). For

11

this reason, Chestang’s claims against Simpson in his official
capacity are claims against the state of Mississippi which are not
actionable under § 1983. Simpson’s Motion to Dismiss is granted as
to the official capacity § 1983 claims against him.
ii.

Individual Capacity Claims

Simpson moves to dismiss the individual capacity § 1983 claims
for violation of substantive due process and equal protection on
the grounds that he is entitled to qualified immunity.

In Saucier

v. Katz, 533 U.S. 194, 201 (2001) the Supreme Court mandated a twopart test for deciding qualified immunity claims, both parts of
which

must

be

satisfied

to

abrogate

a

defendant’s

qualified

immunity : (1) whether facts alleged or shown by the plaintiff make
out the violation of a constitutional right; and (2) if so, whether
that right was clearly established at the time of the defendant’s
alleged misconduct.

Simpson argues that the facts as alleged in

the Complaint do not state the violation of a constitutional right
under either the due process clause or the equal protection clause.
a.

Due Process

The substantive component of the Fourteenth Amendment’s due
process

clause

“protects

individual

liberty

against

certain

government actions regardless of the fairness of the procedures
used to implement them.”
U.S. 115, 125 (1992).

Collins v. City of Harker Heights, 503

Generally, the Supreme Court has held that

the substantive component of the due process clause is violated by

12

executive action “only when it can properly be characterized as
arbitrary, or conscience shocking, in a constitutional sense.”
County of Sacramento v. Lewis, 523 U.S. 833, 847 (1998). Put
another way, a “typical state-law tort claim” does not rise to the
level of a constitutional tort that violates substantive due
process.

Collins, 503 U.S. at 128.

Simpson argues that Chestang

has not alleged behavior that “shocks the conscience” here and thus
the substantive due process claim must be dismissed.

This Court

agrees.
Chestang alleges, essentially, unwanted sexual advances by
Simpson.

Those unwanted advances allegedly took the form of

several telephone calls and in-person conversations as well as one
incident when Simpson “rubbed against [Chestang’s] body.”
at ¶ 19.
professor

Compl.

Though such behavior is no doubt inappropriate between a
and

a

student

and

would

likely

violate

most

Universities’ handbooks, it does not rise to the level of activity
that “shocks the conscience” such that it violates substantive due
process.

Unwanted sexual advances by an adult male to another

adult male are easily distinguishable from the type of conduct that
the Fifth Circuit has held violates due process, for example where
an adult teacher sexually molested a child.

Doe v. Taylor Indep.

Sch. Dist., 15 F.3d 443 (5th Cir. 1994) (holding due process
violation where child was sexually molested by teacher).

Though a

substantive due process right to bodily integrity clearly exists,

13

the Fifth Circuit and other circuit have recognized that only the
most

egregious

misconduct

violates

that

right.

Morris

v.

Dearborne, 181 F.3d 657, 666 (5th Cir. 1999)(holding no due process
violation where teacher sat four-year-old child on lap and guided
child’s hand while typing sexually explicit words which the child
did not understand); Klein v. McGowan, 198 F.3d 705, 710 (8th Cir.
1999)(repeated instances of verbal sexual harassment in workplace
did not rise to level of shocking the conscience to establish due
process violation); Abeyta v. Martinez, 77 F.3d 1253, 1255-56 (10th
Cir.

1996)(defendant

teacher’s

calling

plaintiff

high

school

student a prostitute and permitting other students to verbally
harass her did not rise to the level of a substantive due process
violation).

Because

the

Court

holds

that

there

was

no

constitutional violation here, it need not reach the second step of
the qualified immunity analysis and Simpson’s Motion is granted as
to Chestang’s substantive due process claim.
b.

Equal Protection

With respect to the equal protection claim, Simpson argues
that

Chestang

has

not

sufficiently

alleged

intentional

discrimination against him as a member of a particular class.
However,

there

is

no

question

that

sexual

harassment

is

a

deprivation of the right to equal protection and violates the
Fourteenth Amendment.

Southard v. Texas Bd. of Crim. Justice, 114

F.3d 539, 550 (5th Cir. 1997).

Though the sexual harassment in

14

Southard arose in the employment context, other circuits have
found a violation of equal protection where the alleged harassment
occurred in the university setting between a professor and a
student.

Jennings v. Univ. of N. Carolina, 444 F.3d 255, 293-94

(4th Cir. 2006); Hayut v. State Univ. of New York, 352 F.3d 733,
744 (2d Cir. 2003).

Though the Court cannot determine from the

face of the Complaint whether the alleged conduct was pervasive and
severe

enough

to

create

a

hostile

environment

that

violated

Chestang’s equal protection rights, e.g., Hayut, 352 F.3d at 745,
the

Complaint

at

least

meets

the

minimal

pleading

standards

required to state a valid equal protection claim.
Simpson also argues that the equal protection claim is invalid
because the Supreme Court abolished so-called “class of one” equal
protection claims in Engquist v. Oreg. Dep’t of Agric., 553 U.S.
591(2008). But Engquist did not abolish all “class of one” claims,
it only eliminated those in the context of public employment.
at 607.

Id.

Chestang was not a public employee and thus Engquist is

inapplicable here.
Because

Chestang

has

alleged

the

violation

of

a

valid

constitutional right, the Court must move on to the second step of
the qualified immunity analysis to determine whether the right to
be free from sexual harassment was clearly established when the
alleged conduct occurred. Brown v. Miller, 519 F.3d 231, 236. “To
be clearly established for purposes of qualified immunity, the

15

contours of the right must be sufficiently clear that a reasonable
official would understand that what he is doing violates that
right.

There need not be commanding precedent that holds the very

action in question is unlawful; the unlawfulness need only be
readily apparent from relevant precedent in sufficiently similar
situations.”

Id. at 236-37 (citations omitted).

Here, the right to be free from sexual harassment was clearly
established by the time of the alleged conduct in the spring of
2008; indeed, Southard had been decided over ten years before and
relied

on

Supreme

Court

decisions

also

holding

that

sexual

harassment by a state actor violates the equal protection clause.
E.g., Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1997); Davis
v. Passman, 442 U.S. 228, 234-35 (1979).

The fact that the

harassment alleged by Chestang is in the professor/student context
rather than the employer/employee context does not render the right
any less established.

The unlawfulness of sexual harassment by a

state actor was sufficiently apparent from Southard to put a
reasonable official on notice that sexual harassment violates that
right.

Accordingly, Simpson is not entitled to qualified immunity

as to Chestang’s equal protection claim and the Motion to Dismiss
as to that claim is denied.
For the foregoing reasons,
IT IS HEREBY ORDERED that the Defendant’s Motions to Dismiss
[docket

entries

no.

46,

47,

and

16

56]

are

GRANTED

as

to

the

Plaintiff’s claims under Title IX (Counts I and II), the due
process

clause

of

the

Fourteenth

Amendment

(Count

III)

and

Mississippi state law (Counts IV, V, and VI).
IT IS FURTHER ORDERED that the Defendant’s Motions to Dismiss
are DENIED as to the Plaintiff’s claim under the equal protection
clause of the Fourteenth Amendment (Count III).
SO ORDERED, this the 11th day of May, 2011.

s/ David Bramlette
UNITED STATES DISTRICT JUDGE

17