JONES v. PI KAPPA ALPHA INTERNATIONAL FRATERNITY, INC. et al

Filing 78

OPINION. Signed by Judge Kevin McNulty on 9/13/17. (sr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
JANE JONES,
Plaintiff,
V.

P1 KAPPA ALPHA INTERNATIONAL
FRATERNITY, INC.; BRETT HELBERG;
DAVID MALINOWSKI; P1 KAPPA ALPHA
LOCAL CHAPTER MU
FRATERNITY
RAMAPO COLLEGE; SKENDER
ZETA at
AGIC; JOHN HOGAN; JOSHUA WILLIAM
NEWMAN; RAMAPO COLLEGE OF NEW
JERSEY; RAMAPO COLLEGE BOARD OF
TRUSTEES; VINCENT MARKOWSKI;
PETER MERCER; CORY ROSENKRANZ;
MELISSA VAN DER WALL; JORDYN
MASSOOD; CHRISTOPHER RMNONE;
JUSTIN SOMMERS; JOHN/JANE DOES
1-20; and XYZ CORPORATIONS 1-10,
--

Civ. No. 2:16-cv-7720-KM-MAH

OPINION

Defendants.

MCNULTY, U.S.D.J.:
Plaintiff Jane Jones1 has asserted seventeen causes of action regarding
alleged sexual assaults at Ramapo College on November 14, 2014. (Compl.

¶

33

(ECF no. l)).2 The two persons who allegedly actually committed the sexual
assaults, identified herein as “C.L.” and “N.G.,” are reportedly being prosecuted

This fictional name is used to protect the plaintiffs privacy.
2

Citations to certain record items will be abbreviated as follows:
Compi.

=

Def. Brf.
P1. Brf.

=

Complaint (ECF no. 1)
=

Defendants’ Brief in Support of Motion to Dismiss (ECF no.

Plaintiffs Memorandum of Law in Opposition (ECF no. 33)
1

criminally, and are not defendants here. This action seeks to hold the College,
its administrators and officials, and a number of individuals liable for their
roles in allowing those assaults to occur.
Currently before the Court is the motion of one group of defendants (the
“Ramapo Defendants”) to dismiss the action for lack of subject matter
jurisdiction and failure to state a claim upon which relief may be granted. See
Fed. R. Civ. P. 12(b)(l), 12(b)(6). The Ramapo Defendants are Ramapo College
of New Jersey, the Ramapo College Board of Trustees, Ramapo College Public
Safety Director Vincent Markowski, Ramapo College President Peter Mercer,
Ramapo College Coordinator of Substance Abuse and Prevention Coiy
Rosenkranz, and Ramapo College Acting Dean of Students and former Title IX
Coordinator Melissa Van Der Wall.3
Counts 1—4 of the Complaint are not asserted against the Ramapo
Defendants, and are not implicated in the current motion. Asserted against the
Ramapo Defendants are Count 5 (state tort law); Count 6 (Title IX of the
Education Amendments of 1972, 20 U.S.C.
deliberate indifference); Count 8

(

(

§

168 1(a)); Count 7

(

1983,

1983, state-created danger); Count 9

1983, equal protection); Count 10 (New Jersey Civil Rights Act (“NJCRA”),

N.J. Stat. Ann.

§

10:6-2); and Count 11 (New Jersey Law Against

Discrimination (“NJLAD”), N.J. Stat. Ann.

§

10:5-12).

For the reasons set forth below, the Ramapo Defendants’ motion to
dismiss is for the most part denied. It is granted only as to two claims as to
which plaintiff did not contest the Ramapo Defendants’ contentions on this
motion: Count 6, a Title IX claim, insofar as it seeks injunctive relief, and

Also named as defendants are Pi Kappa Alpha International Fraternity; various
members and officers of the fraternity; former Ramapo College students; and several
John Doe individuals and corporations. Three students, defendants Jordyn Massood,
Christopher Rainone, and Justin Sommers, later filed a separate motion to dismiss
(ECF no. 26), as did another student, defendant Skender Agic (ECF no. 31). Those two
motions, based on failure to timely accomplish service as well as other grounds, will be
decided separately.
3

2

Count 9, an equal protection claim. The remainder of the complaint will go
forward as against the Ramapo Defendants.
I.

FACTUAL BACKGROUND

In considering a motion to dismiss, the Court is required to treat the
facts alleged in the complaint as true and to draw all reasonable inferences in
the plaintiffs favor. I summarize those allegations as follows:
On or about Friday, November 14, 2014, Pi Kappa Alpha’s Mu Zeta
Chapter held a “Date Night” party on Ramapo College’s Campus. (Compl.

¶1

33-35). The party was held at the on-campus apartment of defendant John

Hogan, the fraternity chapter’s sergeant-at-arms. (Id.

¶31

10, 12, 34-35).

Plaintiff Jane Jones was a nineteen-year-old Ramapo student at the time. (Id.

¶

36). She was not originally invited to the party, but attended after several

fraternity members recruited “random students outside of the apartment
building” to attend the party by “calling down” from Hogan’s balcony. (Id.

¶

39).

When Jones arrived at the party, a fraternity member named C.L. served
her alcoholic drinks until she was “complete[lyj inebriated.” (Id.
then “lured” Jones into Hogan’s bedroom. (Id.

¶

¶31

38, 40). C.L.

40). C.L. and Joshua William

Newman played “Rock, Paper, Scissors” outside Hogan’s bedroom door “to
determine who would get to sexually assault and rape” Jones. (Id.
then sexually assaulted her. (Id.

¶31

¶

41). C.L.

42-43).

Other fraternity members, including Hogan, became aware of the sexual
assault. (Id.

¶

43). Instead of intervening to protect Jones, the other fraternity

members expelled C.L. and Jones from the party. Left behind at the party were
Jones’s shoes, underwear, jacket, and school identification. (Id.

¶31

43-47).

C.L. drove Jones across campus, passing through a number of campus
security checkpoints, to Mackin Hall, the freshman dormitory. (Id.
who was not a freshman, did not have access to the dorm. (Id.

¶

¶

50). C.L.,

51). However,

Christopher Rainone and Justin Sommers, who were then Ramapo College
students, provided C.L. with one of their ID cards and allowed C.L. to use their

3

¶ 52-53). CL. and another individual, N.G., took Jones to the
dorm room, where they repeatedly sexually assaulted and raped her. (Id. ¶!J 55
dorm room. (Id.

57). During much of this assault, the door was open; Jordyn Massood,
Christopher Rainone, and Justin Sommers watched, “celebrated,” and
videotaped the assaults. (Id. ¶j 59-60).
Jones suffered permanent and severe physical and psychological injuries
and emotional and mental distress, as well as economic and other damages.

¶ 65). She was unable to continue at Ramapo College and this incident has
had a negative effect on her educational career. (Id. ¶ 66).
(Id.

Jones alleges that Ramapo College employees and representatives (John
and Jane Does), including public safety and securiw employees on patrol and
in security stations, were or should have been aware that these events were
unfolding, but failed to intervene. (Id.

¶ 63). She also alleges that members of

Ramapo College’s administration, named as defendants in their official and
individual capacities, violated state, federal, and constitutional laws in that
they failed to implement and enact policies to prevent on-campus sexual
assault. (Id.
II.

¶ 95-123).
APPLICABLE LEGAL STANDARDS

A. Rule 12(b)(6) Standard

Federal Rule of Civil Procedure Rule l2(b)(6) provides for the dismissal of
a complaint, in whole or in part, if it fails to state a claim upon which relief can
be granted. The defendant, as the moving party, bears the burden of showing
that no claim has been stated. Animal Science Products, Inc. u. China Minmetals
Corp., 654 F.3d 462, 469 n.9 (3d Cir. 2011). For the purposes of a motion to
dismiss, the facts alleged in the complaint are accepted as true and all
reasonable inferences are drawn in favor of the plaintiff. New Jersey Carpenters

The complaint alleges that C.L. and N.G., not defendants here, have been
criminally indicted in connection with the sexual assaults. (Compl. ¶J 44 n.2, 54 n.3).
4

& the Trustees Thereof v. Tishman Const. Corp. of New Jersey, 760 F.3d 297,
302 (3d Cir. 2014).
Federal Rule of Procedure 8(a) does not require that a complaint contain
detailed factual allegations. Nevertheless, “a plaintiffs obligation to provide the
‘grounds’ of his ‘entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Bell AtI. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus, the
complaint’s factual allegations must be sufficient to raise a plaintiffs right to
relief above a speculative level, so that a claim is “plausible on its face.” Id. at
570; see also West Run Student Housing Assocs., LLC v. Huntington Nat. Bank,
712 F.3d 165, 169 (3d Cir. 2013). That facial-plausibility standard is met
“when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
While “[tjhe plausibility standard is not akin to a ‘probability requirement’

...

it

asks for more than a sheer possibility.” Iqbal, 556 U.S. at 678.
B. Rule 12(b)(1) Standard
A motion to dismiss for lack of subject matter jurisdiction pursuant to
Federal Rule of Civil Procedure Rule 12(b)(1) may be raised at any time.
Iwanowa u. Ford Motor Co., 67 F. Supp. 2d 424, 437-38 (D.N.J, 1999). Rule
12(b)(1) challenges are either facial or factual attacks. See 2 James Wm. Moore,
Moore’s Federal Practice

§ 12.30[4] (3d ed. 2007). The defendant may facially

challenge subject matter jurisdiction by arguing that the complaint, on its face,
does not allege sufficient grounds to establish subject matter jurisdiction.
Iwanowa, 67 F. Supp. 2d at 438. Under the “facial” 12(b)(1) standard, as under
Rule 12(b)(6), the allegations of the complaint are assumed to be true. Id.
I construe the Ramapo Defendants’ arguments for dismissal based on
sovereign immunity and qualified immunity as a facial challenge to the
complaint’s jurisdictional basis. Accordingly, for these purposes the Court will

a

take the allegations of the complaint as true. See Gould Elecs., Inc. v. United
States, 220 F.3d 169, 178 (3d Cir. 2000).
III.

ANALYSIS

Section lII.A briefly discusses claims as to which plaintiff does not
oppose dismissal: Count 6, insofar as it seeks injunctive relief, and Count 9.
Section B addresses defendants’ sovereign immunit arguments regarding
Counts 7 and 8. Section C discusses Counts 7 and 8 for failure to state a claim
and qualified immunity. Section D covers defendants’ motion to dismiss the
remainder of Count 6 (i.e., the claim for damages). Section E addresses
defendants’ motion to dismiss the state-law claims in Counts 5, 10, and 11.
A. Uncontested Dismissals

Plaintiffs brief states that she “does not oppose” the motion to dismiss
the equal protection claim (Count 9) and the portion of her Title IX claim
(Count 6) that seeks injunctive relief. (Def. Brf. at 25-27, 34-36; P1. Brf. at 31,
43). Plaintiffs are “the masters of their complaints.” Erie Ins. Exchange v. Erie
Indem. Co., 722 F.3d 154 (3d Cir. 2013). Jones, absent prejudice to the
opposing party, may choose which claims to pursue. Count 9 and the portion
of Count 6 that seeks injunctive relief are therefore dismissed.
B. Sovereign Immunity
The Ramapo Defendants argue that they enjoy Eleventh Amendment
sovereign immunit with respect to the

§

1983 claims brought against the

college itself as a State entity, and against college officials in their capacities as
State officials. (Def. Brf. at 6). The underlying question is whether Ramapo
College is a State entity, i.e., an “arm of the state” that is entitled to invoke the
Eleventh Amendment.
“[Ejach state university exists in a unique governmental context, and
each must be considered on the basis of its own peculiar circumstances’—
including the specific statutes at play and the practical reality of the
institution’s autonomy.” Maliandi u. Montclair State Univ., 845 F.3d 77, 85 (3d
6

Cir. 2016) (quoting Kovats v. Rutgers, 822 F.2d 1303, 1312 (3d Cir. 1987)).
Some institutions in the state system have been definitively held to be arms of
the State. See, e.g., Maliandi, supra (resolving a split among district courts and
holding that Montclair State University is an “arm of the State” for Eleventh
Amendment purposes); Nannay v. Rowan College, 101 F. Supp. 2d 272 (D.N.J.
2000) (finding on summary judgment that Eleventh Amendment immunity
applied to Rowan College). Some, however, have not. See Kovats, 822 F.2d at
1312 (Rutgers not an arm of the state for Eleventh Amendment purposes);
Bostanci v. N.J City Univ., No. 08-4339, 2010 WL 4961621, at *13 (D.N.J.
Dec. 1, 2010) (New Jersey City University not an arm of the state for Eleventh
Amendment purposes).
Ramapo College’s status has not been settled by case law. As to Ramapo,
then, the issue requires a “fact-intensive review that calls for [an] individualized
determination[].” Bowers v. NCAA, 475 F.3d 524, 546 (3d Cir. 2007). The party
asserting sovereign immunity bears the burden of proving entitlement to it.
Christy a Pennsylvania Turnpike Comm’n, 54 F.3d 1140, 1144 (3d Cir. 1995).
Moreover, state-law sovereign immunity “is an affirmative defense

“

Garcia v.

Richard Stockton Cdl. of New Jersey, 210 F. Supp. 2d 545, 548 (D.N.J. 2002)
(citing Caner a City of Philadelphia, 181 F.3d 339, 347 (3d Cir. 1999) (citing
Christy, 54 F.3d at 1144)). I do not say it is impossible to decide the issue at
the motion to dismiss stage, see infra, but these considerations tend to weigh
against it.
Under the Third Circuit’s three-part Fitchik test, a court must examine
the following three elements: “(1) whether the payment of the judgment would
come from the state; (2) what status the entity has under state law; and (3)
what degree of autonomy the entity has.” Bowers v. NC4A, 475 F.3d 524, 546
(3d Cir. 2007) (citing Fitchik v. New Jersey Transit Rail Operations, Inc., 873
F.2d 655, 659 (3d Cir. 1989)). None of the three Fitchik factors is itself
dispositive. The factors are co-equals, Benn v. First Judicial Dist. Of Pa., 426

7

F.3d 233, 239-40 (3d Cir. 2005), “with the funding factor breaking the tie in a
close case,” Maliandi, 845 F.3d at 84.
I explicated the first factor in a recent case involving William Paterson
University:
The first “question at issue is ‘whether a money judgment against a
state instrumentality or official would be enforceable against the
State.”’ Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 430, 117
S. Ct. 900, 137 L.Ed.2d 55 (1997). The appropriate underlying
inquiry “is whether the State is obligated to pay or reimburse the
University for its debts.” Bowers, 475 F.3d at 547. In Bostanci, for
example, this Court found that New Jersey City University “failed
to show that the State of New Jersey bears an obligation to pay a
judgment against it[,]” noting that, under state statutes pertaining
to state universities generally, a university’s board of trustees may
borrow money from the state, but such borrowing would not
constitute a debt of the State. See Bostanci at *2, 2010 U.S. Dist.
LEXIS 126693 at *5 (citing N.J.S.A. § 1SA:64—6(t)).
Brennan v. William Paterson College, 34 F. Supp. 3d. 416, 431 (D.N.J. 2014).
That first factor, probably because it is so fact-intensive, appears to have been
conceded arguendo by the Ramapo here. (Def. Brf. at 7-8) (“[E]ven assuming
that the first factor

...

does not weigh in favor of immunity,

...

Ramapo should

be considered an arm of the state....”). I am reluctant, however, to make a farreaching holding without necessary facts, based on a strategic concession at
the motion-to-dismiss stage.
“The second question asks ‘whether the State itself considers the entity
an arm of the state. Under the second factor, we look to how state law treats
the entity generally; whether the entity can sue or be sued in its own right,
whether the entity is separately incorporated, and whether the entity is
immune from state taxation.”’ Brennan, 34 F. Supp. 3d at 431 (citing Bowers,
475 F.3d at 548).
Here, defendants point out that Ramapo College “is not statutorily
authorized to sue and be sued”; it is immune from all state taxation; has the
power of eminent domain; and is considered to be a “state agency” for purposes
8

of adjudicating contested cases under the Administrative Procedure Act. (Def.
Brf. at 11-12) (citing the relevant New Jersey statutes). Furthermore, Ramapo
is required to abide by and enforce state policy prohibiting discrimination by
State employers; the Governor represents Ramapo in its negotiations with the
employees’ collective bargaining units; and Ramapo employees participate in
the State’s health benefit and pension programs. (Id. at 12).
The third factor concerns the extent of the institution’s autonomy.
Defendants state that Ramapo’s board is appointed by the Governor with
advice and consent of the Senate; the Governor is statutorily designated as the
public “employer” of all college employees and he has the sole power to
collectively bargain on their behalf; and the timing and content of Board
meetings is dictated by statute. (Id. at 8-9) (citing the relevant New Jersey
statutes). The college is subject to financial, programmatic, and review
oversight by the state Secretary of Higher Education. (Id. at 9). Moreover,
Ramapo must comply with operational constraints and state regulations
appHcable to other state entities. (Id. at 10-1 1).
Defendants analogize to the Third Circuit’s recent decision in Maliandi v.
Montclair State University, which found that Montclair State University was
entitled to sovereign immunity. (Id. at 8-13). As to Montclair State, the issue is
settled and may easily be disposed of in any future motion to dismiss. However,
the Maliandi case had a much more thorough set of factors to work with, and it
discussed elements that are not addressed in the Ramapo Defendants’ motion
here. See Malianth, 845 F.3d at 91-96. Maliandi also had the benefit of
decisions of district courts in the Circuit which had split as to whether
Montclair State University was an “arm of the state,” entitled to sovereign
immunity. Id. at 8l.

The district court decision reversed by Maliandi. for example, rested on a prior
decision by the same judge, entered on summaiw judgment. Compare Maliandi v.
Montclair State Univ., No. CIV.A. 14-0 1398 SRC, 2014 WL 377825g, at *1 (D.N.J. July
31, 2014) (citing Ventura v. Montclair State Univ., No. 08—cv—5792 (SRC), 2011 WL
550720 (D.N.J. Feb. 9,2011)) (MSU not an arm of the state), with Sarrniento v.
9

The Ramapo Defendants have made a suggestive showing; they may even
turn out to be correct. Nevertheless, this factually intensive issue must await

the summary judgment stage. I cannot make the necessary findings without a
factual record, and the issue is not clear enough as a matter of precedent to
justify dismissal on a Rule 12(b)(6) basis.
Accordingly, defendants’ motion to dismiss the

§ 1983 Counts against

Ramapo College and the Ramapo Defendants in their official capacities on the
basis of their Eleventh Amendment sovereign immunity is denied. That denial
is without prejudice to renewal of these contentions on summary judgment.
C.

§ 1983 Claims: Sufficiency and Qualified Immunity

The Ramapo Defendants contend that Counts 7 and 8, both

§ 1983

claims, fail to state a claim against them. In their individual capacities, they
also assert qualified immunity. (Def. Brf. at 14-27). The two

§ 1983 causes of

action at issue are a state-created danger claim (Count 8) and a deliberate
indifference claim (Count 7).
1. State-Created Danger (Count 8)
In the Third Circuit, a

§ 1983 state-created danger claim has four

essential elements:
(1) [Tjhe harm ultimately caused was foreseeable and fairly direct;
(2) a state actor acted with a degree of culpability that shocks the
conscience;
(3) a relationship between the state and the plaintiff existed such
that the plaintiff was a foreseeable victim of the defendant’s acts,
or a member of a discrete class of persons subjected to the
potential harm brought about by the state’s actions, as opposed to
a member of the public in general; and

Montclair State Univ., C.A. No. 04—cv—4 176, letter op. (D.N.J. Mar. 31, 2005)
(concluding that MSU is an arm of the State).

10

(4) a state actor affirmatively used his or her authority in a way
that created a danger to the citizen or that rendered the citizen
more vulnerable to danger than had the state not acted at all.
L.R. v. Sch. Dist. of Phila., 836 F.3d 235, 242 (3d Cir. 2016) (line breaks added)
(citing Bright v. Westmoretand

Cty.,

443 F.3d 276, 281 (3d Cir. 2006)).

The defendants argue that the fourth element is lacking because they are
not alleged to have “affirmatively” used their authority. (Def. Brf. at 20-21). The
Third Circuit analyzes this element by first “evaluat[ing] the setting or the
‘status quo’ of the environment before the alleged act or omission occurred,”
and then asking “whether the state actor’s exercise of authority resulted in a
departure from that status quo.” L.R., 836 F.3d at 243.
Jones’s complaint alleges that the defendants had actual or constructive
knowledge of a “hostile educational environment,” in which fraternity members
were “targeting young female students for involuntary sexual activity, hinged
on intoxication.” (Compl.

¶

218). Despite this knowledge, the Ramapo

Defendants allegedly failed to “supervise, control, and monitor” Pi Kappa Alpha
fraternity’ activities, and other campus activities involving underage drinking;
failed to prevent and eradicate the “hostile educational environment for female
students”; failed to maintain effective policies and procedures for “reporting
and recognizing nonconsensual sexual activities”; failed to properly protect
female students; failed to provide proper security; and failed to exercise due
care under the circumstances. (Compl.

¶

219).

Jones contends that her argument extends beyond allegations of passive
“failure to intervene.” (P1. Brf. at 22). She argues in her papers that “Ramapo
Security officials and Residence Assistants working as agents and
representatives of the Ramapo Defendants, had authority and utilized their
authority to permit the rapist and Plaintiff to enter secure and prohibited areas
of Ramapo College” to which C.L. and Jones, as non-freshmen, did not have
rightful access. (P1. Brf. at 22).

11

Thus her complaint seeks to hold the Ramapo Defendants individually
liable for the actions of unnamed defendants John/Jane Does #1-10 “by virtue
of the doctrines of vicarious liability and Respondeat Superior.” (Compi.
But because respondeat superior is not available in a

¶ 189).

§ 1983 action, the state-

created danger claim must be considered in the context of municipal or
supervisory liability; that is the only basis on which liability-creating acts of the
college’s security personnel would flow upward to supervisors or the college
itself.
A governmental entity (assuming that the College is such an entity) is not
liable under

§ 1983 via respondeat superior. See Monell v. New York Dep’t of

Soc. Sems., 436 U.S. 658, 69 1-92 (1978). The institution must have personal
involvement—for example, in the form of (1) a policy or custom, or
(2) knowledge of and acquiescence in the unconstitutional conduct. See also
A.PvL ex rel. JM.K. v. Luzeme Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.
2004); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988). This is

sometimes referred to as “Monell” liability, or—misleadingly in this case—as
“municipal” liability.
The same goes for the liability of supervisory and administrative
personnel. Jones does not assert, for example, that defendants Vincent
Markowski, Peter Mercer, Cory Rosenkranz, and Melissa Van Der Wall were
personally present on the night of the assault or that they personally “utilized
their authority to permit the rapist and Plaintiff to enter secure and prohibited
areas of Ramapo College.” (P1. Brf. at 22). Rather, Jones argues that these
defendants are liable as supervisors for any state-created danger caused by
their subordinates.
Officials, like municipalities, “are liable only for their own
unconstitutional conduct, and cannot ‘be held liable for the unconstitutional
conduct of their subordinates under a theory of respondeat superior.”
Jankowski v. Lellock, 649 F. App’x 184, 186 (3d Cir. 2016) (citing Bisthan v.
Levi, 696 F.3d 352, 366 (3d Cir. 2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662,
12

676 (2009))). Under certain conditions, however, supervisoiw liability may
attach. A prerequisite—not sufficient, but necessary—is that there be a
supervisor-subordinate relationship or a state law duty to control the actions of
the primary actor. Jankowski, 649 F. App’x at 187 (citing C.H. cx rd. Z.H. v.
Oliva, 226 F.3d 198, 201 (3d Cir. 2000)). Where there is such a supervisory
relationship, as in the case of municipal liability, there are two routes to
supervisory liability for the unconstitutional actions of a subordinate:
(1) “First, liability may attach if the supervisor, ‘with deliberate
indifference to the consequences, established and maintained a policy,
practice, or custom which directly caused the constitutional harm.”’
Jankowski, 649 F. Appx at 187 (citing Aid. cx reL JM.K. v. Luzeme Cty.
Juvenile DeL Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). This theory is perhaps
most pertinent to Jones’s deliberate indifference claim, discussed in the next
section.
(2) “Second, at least prior to Iqbal, ‘a supervisor may be personally liable
under

§

1983 if he or she participated in violating the plaintiffs rights, directed

others to violate them, or, as the person in charge, had knowledge of and
acquiesced’ in the subordinate’s unconstitutional conduct.” Jankowski, 649 F.
App’x at 187 (citing A.M. cx rd. JM.K., 372 F.3d at 586). This requires both
(a) “contemporaneous knowledge of the offending incident or knowledge of a
prior pattern of similar incidents,” and (b) “circumstances under which the
supervisor’s inaction could be found to have communicated a message of
approval.” Id. (citing Oliva, 226 F.3d at 202).
Jones has alleged that there were known sexual assaults prior to this
incident, and that the supervisors were deliberately indifferent to the purported
“hostile sexual environment” at Ramapo. (Compl.

¶J

26, 202). These

contentions, while not terribly specific, plausibly suggest a claim. Any
vagueness does not concern the actual wrongs done to the plaintiff, which are
described very specifically; facts concerning policy-and-custom or defendants’

13

knowledge, as is usual, are mostly in the exclusive control of the defendants. I
cannot justify dismissal as a matter of law on a Rule l2(b)(6) basis.
Defendants also argue for dismissal of the state-created danger claim
based on a qualified immunity defense. To overcome qualified immunity, a
plaintiff must plead 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.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011); see
also Pearson v. Callahan, 555 U.S. 223, 236 (2009); Saucier u. Katz, 533 U.S.
194, 201 (2001).
As for the first prong, I have already denied the Rule 12(b)(6) motion to
dismiss, finding that the plaintiff has sufficiently alleged a constitutional claim.
Even if I had not, however, I would deny qualified immunity based on the
second, “clearly established” prong. It is true that, in general, “[tjhe statecreated danger theory is now widely accepted.” Sanford v. Stiles, 456 F.3d 298,
304 (3d Cir. 2006). It is impossible to say at this early stage, however, that a
reasonable official could have “evaluated the setting or the ‘status quo’ of the
environment,” and then concluded with any certainty that his or her “exercise
of authority resulted in a departure from that status quo” in a way that created
an unacceptable risk that third parties would permit sexual assault to occur.
L.R., 836 F.3d at 243. Such policy matters do not easily lend themselves to the
kind of analysis under which we would assess, e.g., a police officer’s on-thespot determination that there was probable cause to arrest.
In addition, the Third Circuit has explicitly declined to rule as to whether
Iqbal, supra, has eliminated or narrowed the scope of supervisory liability.
Jankowski, 649 F. App’x at 187 (citing Argueta v. U.S. Immigration & Customs
Enforcement, 643 F.3d 60, 70 (3d Cir. 2011)). That area of the law, too, has an
unsettled component.
Whether the issue is viewed directly or through the lens of qualified
immunity, dismissal is inappropriate at this early stage. The merits of the
state-created danger claim must await summary judgment or trial.
14

2. Deliberate Indifference Claim

The Ramapo Defendants similarly argue for the dismissal of Count 7,

§

plaintiffs

1983 deliberate indifference claim. (Def. Brf. at 15). This component

of their motion to dismiss will be denied for many of the same reasons
discussed as to Count 8 in the preceding section. Regarding plaintiffs
deliberate indifference claim, the Ramapo Defendants argue that plaintiff does
not explain how they were personally involved in, or othenvise responsible for,
the alleged constitutional violation. (Def. Brf. at 15).
Plaintiff has alleged that these defendants were deliberately indifferent to
complaints of sexual harassment and sexual misconduct against female
students and visitors; alcohol use, abuse, and consumption on campus,
particularly involving fraternities; and public safety problems on campus.
(Compl.

¶

210). Factual allegations include failure to take appropriate

measures in response to allegations of sexual or physical abuse of students;
failure to promulgate a comprehensive and clear sexual misconduct policy; and
failure to properly train the College’s public safety staff as to sexual
misconduct investigations. (Compl.

¶

211).

Again, these contentions will be developed, or refuted, in discovery. At
this stage, however, the plaintiff has made sufficient allegations regarding the
Ramapo Defendants to maintain a plausible claim. As for qualified immunity’, I
incorporate the analysis under Count 8, supra. The Ramapo Defendants’
motion to dismiss the Complaint is denied as to Count 7.
D. Title IX Damages Claim

In Count 6, the plaintiff alleges that she was subject to gender-based
discrimination in violation of Title IX of the Education Amendments of 1972.
Title IX provides in relevant part, “No person in the United States shall, on the
basis of sex, be excluded from participation in, be denied the benefits of, or be
subjected to discrimination under any education program or activity’ receiving
Federal financial assistance.” 20 U.S.C.

§

15

168 1(a) (emphasis added).

Plaintiff alleges that the Ramapo Defendants were “deliberately
indifferent” to “a hostile sexual environment” on campus and “known acts of
harassment and assaults.” (Compi.

¶f

199-201). Defendants contend that

plaintiff has failed to allege actual knowledge of prior similar incidents of
sexual assault. (Def. Brf. at 28).
The Supreme Court has held that, unless there is an official policy of the
recipient entity, “a damages remedy will not lie under Title IX unless an official
who at a minimum has authority to address the alleged discrimination and to
institute corrective measures on the recipient’s behalf has actual knowledge of
discrimination in the recipient’s programs and fails adequately to respond.”
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998). Furthermore,
recipients are liable in damages for student-on-student harassment “only
where they are deliberately indifferent to sexual harassment, of which they
have actual knowledge, that is so severe, pervasive, and objectively offensive
that it can be said to deprive the victims of access to the educational
opportunities or benefits provided by the school.” Davis v. Monroe Cty. Bc!. of
Ethic., 526 U.S. 629, 650 (1999).
Plaintiffs allegations, it is true, are to some degree conclusory. But here
again, as to her own injuries she is quite specific, and she cannot be expected
to possess essential facts about the institution’s knowledge. The Complaint
does allege that the defendants were aware of “prior reports of sexual assaults,
sexually hostile behavior and physical assaults of female students and visitors”
(Compl.

¶

¶

179) and demonstrated a “systemic failure to discipline” (Compl.

202). The plaintiff also alleges that there were prior acts of sexual misconduct

involving Pi Kappa Alpha’s campus chapter. (Compl.

¶1J

156, 192). Perhaps

true, perhaps not; but if the Ramapo Defendants were aware of these incidents
and did nothing, they may be exposed to Title IX liability.
At the pleading stage, an allegation that the Ramapo Defendants were
deliberately indifferent to prior incidents of sexual assault involving the same

16

group of individuals states a plausible claim under Title IX. Accordingly, the
motion to dismiss Count 6’s claim for damages is denied.
E. State Law Claims

1. New Jersey Constitution and Civil Rights Act
Plaintiff alleges violations of the New Jersey Constitution and the New
Jersey Civil Rights Act (“NJCRA”), N.J. Stat. Ann

§ 10:6-2. Defendants counter

that sovereign immunity bars these claims against the Ramapo Defendants.
(Def. Brf. at 13-14). In prior cases, I have cited ample authority that “the
NJCRA is interpreted as analogous to

§ 1983.” Szemple v. Corr. IvIed. Servs.,

493 F. App’x 238, 241 (3d Cir. 2012); see also Rezem Family Assocs. v. Borough
of Millstone, 30 A.3d 1061, 1067-68 (N.J. Super. Ct. App. Div. 2011). In
particular, the same Eleventh Amendment sovereign immunity analysis that
applies to

§ 1983 claims also applies by analogy’ to NJCRA claims. EndI v. New

Jersey, 5 F. Supp. 3d 689 (D.N.J. 2014). For the reasons expressed in Section
III.B, supra, Defendants’ motion to dismiss Count 10 is denied.
2. New Jersey Law Against Discrimination
Plaintiff also alleges violations of the New Jersey Law Against
Discrimination (“NJLAD”), N.J. Stat. Ann.

§ 10:5-1—49. NJLAD, a broadly

remedial statute, “permits a cause of action against a school district for
student-on-student harassment” based on sex “if the school district’s failure to
reasonably address that harassment has the effect of denying to that student
any of a school’s ‘accommodations, advantages, facilities or privileges.’” L.W. ex
ret. L.G. v. Toms River Reg’l Schs. Bd. of Ethic., 189 N.J. 381, 402 (2007). A
school will be held liable for such harassment when the school “knew or should
have known of the harassment but failed to take actions reasonably calculated
to end the mistreatment and offensive conduct.” Id. at 390.
The Ramapo Defendants contend that the Complaint does not plausibly
allege that they “knew or should have known” about the harassment. (Def. Brf.
at 36-37). Here, as in the prior counts, I note the allegations that the Ramapo
Defendants had actual notice of sexual assaults, harassment, and
17

inappropriate conduct, some of it “committed by PIKE fraternity members,
including ‘C.L.”’ (Compl.

¶ 240; see also fri. ¶1J 26, 179.)

The Complaint sufficiently alleges that Ramapo Defendants knew or
should have known about acts of harassment by Pi Kappa Alpha fraternity
members and C.L. I therefore deny defendants’ motion to dismiss Count 11.
3. State-Law Negligence Claims

Count 5 alleges a state-law negligence claim against the Ramapo
Defendants. Defendant argues that (1) Ramapo College is immunized from
negligence liability under the New Jersey Charitable Immunity Act (“NJCIA”),

§ 2A:53A-7(a); (2) the college is immunized for failure to provide
protection because of N.J. Stat. Ann. § 59:5-4; and (3) as a matter of law, a
N.J. Stat. Ann.

negligence per se theory cannot be based on alleged Title IX violations. (Def.
Brf. at 37-39).
(1) Charitable immunity does not eliminate any and all negligence claims.
While charitable immunity is “liberally construed” under N.J. Stat. Ann.

§ 2A:53A-10, charities are not immune from “a willful, wanton or grossly
negligent act of commission or omission.” N.J. Stat. Ann. § 2A:53A-7; see also
Orzech v. Fairleigh Dickinson Univ., 985 A.2d 189, 196 (N.J. Super. Ct. App.
Div. 2009). The Complaint pleads that these defendants acted with “gross
negligence.” (Compl. ¶j 191, 208).
The parties also disagree on whether Jones was an intended “beneficiary”
under the NJCIA in connection with the events of November 14, 2014. (Def.
Brf. at 38); (P1. Brf. at 46-50). Defendants argue that Jones, as a Ramapo
student, was a per se beneficiary. (Def. Brf. at 38). Plaintiff counters that she
was not a beneficiary, because the events on the relevant evening had no
connection to the

university’s

charitable mission. (P1. Brf. at 47). As to a

university, “beneficiary status turns on whether the charitable organization
was performing its charitable works at the time of the accident, and the
relationship at the time of the organization and the claimant.” Orzech v.
Farleigh Dickinson Univ., 985 A.2d 189, 195 (N.J. Super. Ct. App. Div. 2009).
18

The court concluded that “while living in a dormitory a student is a beneficiary,
to some degree, of the university.” Id. at 209. Jones was a commuter student,
not a dormitory resident; nevertheless, many of the critical events took place in
a Ramapo dorm. The relation between the events and the university’s
charitable mission presents a question of fact, requiring the balancing of
factors with the benefit of an evidentiaxy record.
“Charitable immunity is an affirmative defense, as to which, like all
affirmative defenses, defendants bear the burden of persuasion.” Abdallah v.
Occupational Ctr. of Hudson

Cty.,

Inc., 798 A.2d 131, 136 (N.J. Super Ct. App.

Div. 2002). Consequently, I cannot dismiss a complaint on a motion to dismiss
unless it is clear from the face of the complaint that the immunity applies. The
applicability of charitable immunity here is not so clear.
(2) Jones’s state law negligence claims are not wholly barred by the
police-protection immunity, because they extend beyond claims of insufficient
police protection. A New Jersey statute provides that “Neither a public entity
nor a public employee is liable for failure to provide police protection service or,
if police protection service is provided, for failure to provide sufficient police
protection service.” N.J. Stat. Ann.

§ 59:5-4. (Def. Brf. at 38-39). This immunity

does not extend to all of plaintifFs negligence claims or require dismissal of
Count 5. Jones’s negligence claims include, for example, “failure to properly
train its Public Safety staff as to sexual misconduct investigations.” (Compl.

¶ 169). Such a claim does not directly relate to police protection, but rather
focuses on the purported negligence of Ramapo College in investigating and
pursuing sexual assault allegations.
(3) I agree that a plaintiff cannot state a claim for negligence per se that
relies on alleged Title IX violations. (Def. Brf. at 39); (Compl.

¶ 183-184). The

Supreme Court has clarified that, except for a case involving the official policy
of the recipient entity, “a damages remedy will not lie under Title IX unless an
official who at a minimum has authority to address the alleged discrimination
and to institute corrective measures on the recipient’s behalf has actual
19

knowledge of discrimination in the recipient’s programs and fails adequately to
respond.” Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). A claim
that violation of Title IX, or regulations thereunder, constitutes negligence per
se would vitiate Title IX’s knowledge requirement.
Negligence per se is the doctrine that violation of a statute in itself
establishes negligence. See Martin v. Herzog, 228 N.Y. 164, 167-68 (1920)
(Cardozo, J.). Gebser explains, however, that a violation of Title IX does not give
rise to a claim unless there is an official policy or actual knowledge. To allow a
violation of Title IX to establish negligence per se would effectively undermine
the Gebser rule and excuse the policy/knowledge requirement. See Doe v.
Brown Univ., 166 F. Supp. 3d 177, 196-97 (D.R.I. 2016); Doe v. Univ. of the
South, No. 4:09-62, 2011 WL 1258104, at *14 (E.D. Tenn. Mar. 31, 2011).
Negligence per se would be an end-mn around the requirements of Title IX. I
agree, therefore, that a claim of negligence per se cannot be founded on a
violation of Title IX.
To be sure, then, not every possible negligence theory is viable, and I
have briefly discussed some of those vulnerabilities for the guidance of the
parties. Nevertheless, Count 5 does assert negligence claims that survive a
Rule 12(b)(6) analysis. The motion to dismiss Count 5 is therefore denied.
IV.

CONCLUSION

For the foregoing reasons, the Ramapo Defendants’ motion to dismiss the
Complaint is GRANTED as to Count 6 insofar as it seeks injunctive relief, as
well as Count 9 in its entirety. The motion to dismiss is DENIED as to all other
Counts and claims. An appropriate Order follows.
Dated: September 13, 2017

HON. KEVIN MCNULTY, U.S.P4.J)

20