Gulyas v. Appalachian State University et al

Filing 31

ORDER granting in part and denying in part 27 Motion to Dismiss. Defendants' Motion to Dismiss is GRANTED with respect to Counts Three, Four, and Five of Plaintiff's Complaint and those counts are DISMISSED. Plaintiff may proceed on all other claims. Signed by District Judge Richard Voorhees on 8/28/2017. (tmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CASE NO. 5:16-CV-00225-RLV-DCK
FRANK GULYAS,
Plaintiff,
v.
APPALACHIAN STATE UNIVERSITY,
UNIVERSITY OF NORTH CAROLINA,
CINDY A. WALLACE, in her individual and
official capacities, JUDITH HASS, in her
individual and official capacities, DAVID J.
ELROD, in his individual and official
capacities, and DARRELL P. KRUGER, in
his official capacity,
Defendants.

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ORDER

THIS MATTER IS BEFORE THE COURT on Defendants’ Motion to Dismiss (Doc.
27). The parties have filed their respective briefs (Docs. 28, 29, 30) and this matter is ripe for
disposition. For the reasons stated below, Defendants’ Motion to Dismiss (Doc. 27) is GRANTED
IN PART and DENIED IN PART.
I.

FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND
In fall semester of 2014, Plaintiff Frank Gulyas started his sophomore year at Appalachian

State University (“App. State” or the “University”), a collegiate institution within the University
of North Carolina system. (See Doc. 1 at 1). In October 2014, Plaintiff and Melissa Costa, who
lived in the same co-ed dormitory building, commenced an exclusive dating relationship. Id. at 2.
The relationship between Plaintiff and Costa proved rocky, and Plaintiff alleges that Costa
frequently exhibited “extreme jealousy” when she observed other females interacting with him.
Id. On the evening of February 21, 2015, Plaintiff, a friend of Plaintiff’s, and the sister of
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Plaintiff’s friend attended a party. Id. The party lasted late into the night and by the time Plaintiff
left the party, his friend’s sister was unable to return to the dorm room where she had intended to
spend the night. Id. Plaintiff invited his friend’s sister to spend the night in his dorm room, which
Plaintiff’s roommate also occupied. Id. Costa learned that a female was staying in Plaintiff’s
dorm room, entered Plaintiff’s room, and cursed at, yelled at, kicked, and hit Plaintiff. Id. at 3.
Costa briefly left Plaintiff’s room but, soon thereafter, reentered his room to return several of
Plaintiff’s clothing items and to further berate Plaintiff. Id.
According to Plaintiff, the events on the night of February 21, 2015 marked the official end
of his and Costa’s exclusive relationship. Id. Nonetheless, Plaintiff and Costa continued to
sporadically hang out and spend nights in each other’s rooms, in what might be best described as
a casual relationship. See id. During spring break, Plaintiff commenced a relationship with another
female and informed Costa of such once classes were back in session. Id. Costa did not take well
to this information and sent Plaintiff a series of “increasingly angry and hostile” texts. Id. On
March 28, 2015, approximately ten days after informing Costa of his new relationship, Plaintiff
went to Costa’s dorm room to fully end his relationship with Costa. Id. When he arrived at Costa’s
dorm room, he found the door to her room ajar, he tapped on the door, and then entered Costa’s
room. Id. With Costa’s roommate present, Plaintiff and Costa commenced a conversation about
the end of their relationship. Id. During the conversation, Costa’s roommate left, Costa began to
cry, and Plaintiff attempted to comfort her by placing his hand on her upper arms. Id. at 4. The
two continued their conversation until Costa’s roommate returned, at which point Costa and her
roommate asked Plaintiff to leave. Id. Plaintiff complied with this request and left Costa’s room.
Id.

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On March 30, 2015, Costa filed a criminal trespassing charge relative to Plaintiff’s entry
into her dorm room on March 28, 2015. Id. Costa also filed a 50B Complaint with a motion for a
domestic violence protective order (“50B Complaint”), in which she alleged that Plaintiff
threatened to kill her and kill her family if she told people any of his secrets. Id. On April 1, 2015,
Costa filed a second criminal charge against Plaintiff, this one for communicating threats. See id.
In early April 2015, Costa also filed a complaint with Defendant App. State. Id. In her complaint
with App. State, Costa accused Plaintiff of harassment, unauthorized entry into her dorm room,
making threats, and causing bodily harm. Id.
App. State commenced its investigation into the matter on April 8, 2015, assigning
Investigator Stacy Sears to the matter. Id. During the course of the investigation, Sears learned
of the February 21, 2015 altercation between Costa and Plaintiff. Id. Sears reported the events of
February 21, 2015 to Defendant David J. Elrod and to Defendant Judith Hass but was instructed
to investigate only Costa’s complaint about the events of March 28, 2015 and to omit details of
the February 21, 2015 incident from her investigation report. Relative to the February 21, 2015
incident, the investigation report, which is provided to the University Conduct Board, read: “On
the night of February 21/22 [Plaintiff] and [Costa] had an argument and decided to stop dating.”
Id.
In September 2015, proceedings on Costa’s 50B Complaint commenced, with the 50B
Court taking testimony from witnesses on Thursday, September 17 and Friday, September 18. Id.
at 5. Defendant Elrod testified at the hearing, observed the testimony of several witnesses who
provided testimony adverse to Costa’s allegations, and was aware that the 50B Court scheduled a
final day of hearing testimony, to include the subpoenaed testimony of Investigator Sears, for
Monday October 5, 2015. Id. On Saturday, September 19, Defendant Elrod issued Plaintiff an

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“official notice” that formally advised Plaintiff of the charges against him and informed him that
his University Conduct Board hearing was scheduled for Friday, October 2, 2015. Id. Plaintiff
moved to continue his student conduct hearing and Defendant Elrod denied the motion. Id. The
University Conduct Board hearing occurred on Friday, October 2, 2015, with several students
testifying but Investigator Sears not appearing. Id. at 6. On October 5, 2015, the Rule 50B Court
held its final hearing on Costa’s 50B Complaint, during which Investigator Sears testified about
the events of February 21, 2015 and Defendant Elrod’s and Defendant Hass’s directive to Sears
about not including the events of February 21 in her investigation report. Id. at 5-6. Prior to
Sears’s testimony at the 50B Complaint hearing on October 5, 2015, Plaintiff was unaware that
Defendant Elrod and Defendant Hass had directed Sears not to investigate the February 21 incident
and to omit details of the incident from the investigation report provided to the University Conduct
Board. See id. at 4-5.
The 50B Court concluded that Costa did not present sufficient proof to sustain her burden
and dismissed her 50B Complaint. Id. at 6. On October 7, 2015, the University Conduct Board
found Plaintiff “responsible” for “unlawful entry” and for “acts of harm,” suspended Plaintiff for
the remainder of the fall 2015 academic term, and required Plaintiff to meet certain conditions
before he could return to App. State in a future semester. Id. Plaintiff appealed the University
Conduct Board’s decision, raising several procedural and evidentiary challenges and noting that
he was not provided a copy of his hearing transcript for purposes of appeal. Id. at 6-7.

On

November 10, 2015, Plaintiff received a letter from Defendant Cindy A. Wallace that indicated
that his appeal had been denied. Id. at 7. On November 17, 2015, the district attorney dismissed
the criminal charges filed by Costa. Id.

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In January 2016, Plaintiff filed an initial action against Defendants. Gulyas v. Appalachian
State University, Case No. 5:16-cv-00028-RLV-DSC, Doc. 1-1. After removal of the action to
federal court and with a pending motion to dismiss by Defendants, Plaintiff voluntarily dismissed
his initial action pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). Id. at Doc. 20. Plaintiff filed the
pending complaint in December 2016. Plaintiff’s pending complaint raises five causes of action:
(1) denial of due process as guaranteed by Article 1, Section 19 of the North Carolina Constitution
(Count One); (2) denial of due process as guaranteed by the Fourteenth Amendment of the United
States Constitution (Count Two); (3) denial of the right to equal protection under the law as
guaranteed by the Fourteenth Amendment of the United States Constitution (Count Three); (4)
denial of the right to equal protection under the law as guaranteed by Article 1, Section 19 of the
North Carolina Constitution (Count Four); and (5) discrimination on the basis of gender in
violation of Title IX, 20 U.S.C. § 1681 (Count Five). Id. at 8-12. Plaintiff’s pending complaint
seeks relief in the form of an order requiring App. State to expunge his record of any suspension
and incomplete grades, compensatory damages, litigation costs, and attorney fees. Id. at 12.
Defendants move to dismiss Plaintiff’s pending complaint under Fed. R. Civ. P. 12(b)(1) and
12(b)(6), generally arguing that Plaintiff does not allege facts that can support a constitutional due
process violation, that Plaintiff does not allege facts demonstrating that he was similarly situated
to another female student or that any defendant treated him differently on the basis of his
gender/sex, that Plaintiff did not exhaust all available state law remedies before bringing his state
constitutional claims, and that the Defendants named in their individual capacity are entitled to
qualified immunity. (Doc. 27, Doc. 28 at 7-22).

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II.

DISCUSSION
A.

Standard of Review

When reviewing a motion to dismiss, a court must examine the legal sufficiency of the
complaint; it may not resolve factual disputes or weigh the claims and defenses against one
another. See Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Further, a court
must accept as true all of the well-pled factual allegations contained in the complaint. See Mylan
Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). While Fed. R. Civ. P. 8(a) does not
require “detailed factual allegations,” a complaint must offer more than “naked assertion[s]” and
unadorned “labels and conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In order to
survive a motion to dismiss, the facts alleged must be sufficient to “raise a right to relief above the
speculative level” and “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 570 (2007). Requiring plausibility “does not impose a probability
requirement at the pleading stage,” id. at 556, but does demand more than a “sheer possibility that
a defendant has acted unlawfully,” Iqbal, 556 U.S. at 678. Ultimately, a claim is facially plausible
when the factual content allows for the reasonable inference that the defendant is liable for the
misconduct alleged. Id.
B.

Fourteenth Amendment Procedural Due Process Claim1
i.

Legal Standard

To raise a procedural due process claim under the Fourteenth Amendment, a Plaintiff must
allege “(1) a cognizable ‘liberty’ or ‘property’ interest; (2) the deprivation of that interest by ‘some
form of state action’; and (3) that the procedures employed were constitutionally inadequate.” Iota

As Plaintiff’s procedural due process claim only identifies Defendants Haas, Wallace, and Elrod (see Doc. 1 at 910), this Court construes the claim as only arising against those three Defendants and not against Defendants
Appalachian State University, University of North Carolina, or Darrell P. Kruger.
1

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Xi Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir. 2009) (quoting Stone
v. Univ. of Md. Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988)). For purposes of their motion
to dismiss, Defendants only challenge whether Plaintiff’s Complaint contains allegations capable
of supporting the third element of a procedural due process claim. (See Doc. 28 at 7-16). On the
most basic level, due process requires that a university student facing suspension or expulsion
receive (1) “adequate notice of the charges against him”; (2) “the opportunity to be heard by
disinterested parties”; (3) the opportunity to be “confronted by his accuser[]”; and (4) “the right to
have a record of the hearing reviewed by a student appellate body.” Henson v. Honor Comm. of
the Univ. of Va., 719 F.2d 69, 74 (4th Cir. 1983). The opportunity to be heard is not a pro forma
requirement and, instead, entails providing the accused student “the opportunity to be heard at a
meaningful time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976)
(internal quotation marks omitted). The “timing and content of the notice and the nature of the
hearing will depend on appropriate accommodation of the competing interests involved,” namely
the risk to the accused of the hearing resulting in an errant result and the unfair or mistaken
suspension of the accused versus the need of the educational institution to instill order and
discipline and to foster a safe environment conducive to learning. See Goss v. Lopez, 419 U.S.
565, 579-81 (1975) (discussing procedural due process in context of high school setting).
Ultimately, whether the procedures employed in a given case satisfy procedural due process
requirements depends on three variables: (1) “the private interest that will be affected by the
official action”; (2) “the risk of an erroneous deprivation of such interest through the procedures
used and the probable value, if any, of additional or substitute procedural safeguards”; and (3) “the
[university’s] interest, including the function involved and the fiscal and administrative burdens
that the additional or substitute procedural requirement would entail.” Matthews, 424 U.S. at 335.

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“Fairness can rarely be obtained by secret, one-sided determination of facts decisive of
rights”; thus, an accused student must be permitted the opportunity to “tell his side of the story in
order to make sure that an injustice is not done.” Goss, 419 U.S. at 580 (brackets and internal
quotation marks omitted). To help ensure fairness and the accused’s ability to meaningfully
present his side of the story, due process requires that a university provide the accused with the
names and a summary of the testimony of the witnesses against the accused and that the university
give the accused an opportunity to present evidence, including oral testimony or written affidavits
from witnesses. Sohmer v. Kinnard, 535 F. Supp. 50, 53 (D. Md. 1982) (citing Dixon v. Alabama
Bd. of Educ., 294 F.2d 150, 158-59 (5th Cir. 1961), Herman v. Univ. of South Carolina, 341 F.
Supp. 226, 230-31 (D.S.C. 1971), aff’d, 457 F.2d 902 (4th Cir. 1972)), see also Henson, 719 F.2d
at 74 (“Although Dixon was decided more than twenty years ago, its summary of minimum due
process requirements for disciplinary hearings in an academic setting is still accurate today.”).
However, due process does not require university hearing boards to employ procedures equivalent
to those afforded to a criminal defendant. Henson, 719 F.2d at 74; see also Doe v. Cummins, 662
F. App’x 445, 446 (6th Cir. 2016) (“[D]isciplinary hearings against students are not criminal trials,
and therefore need not take on many of those formalities.” (ellipsis omitted) (quoting Flaim v.
Med. Coll. Of Ohio, 418 F.3d 629, 635 (6th Cir. 2005))). To that point, courts have declined to
conclude that due process requires a university to (1) provide an accused student with counsel,
Doe v. Univ. of Cincinnati, 173 F. Supp. 3d 586, 603-4 (S.D. Ohio 2016); (2) permit counsel
retained by an accused student to participate at the hearing, Henson, 719 F.2d at 74, Osteen v.
Henley, 13 F.3d 221, 225-26 (7th Cir. 1993); (3) turn over exculpatory or impeachment evidence
to the accused student, Tanyi v. Appalachian State Univ., 2015 WL 4478853, at *5 (W.D.N.C. July
22, 2015) (Voorhees, J.), Gomes v. Univ. of Maine Sys., 365 F. Supp. 2d 6, 18 (D. Me. 2005); or

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(4) exclude hearsay evidence from the disciplinary hearing, Doe v. Univ. of Cincinnati, 173 F.
Supp. 3d at 602.
Because an accused student’s due process rights flow from the Fourteenth Amendment of
the United States Constitution, a university’s violation of its internal policies and practices
governing disciplinary hearings does not, in and of itself, constitute a due process violation.
London v. Dirs. Of the Dewitt Pub. Schs., 194 F.3d 873, 877 (8th Cir. 1999); Jones v. Bd. of
Governors of Univ. of North Carolina, 704 F.2d 713, 717 (4th Cir. 1983). However, the United
States Supreme Court has recognized that “significant departures from stated procedures of
government and even from isolated assurances by governmental officers which have induced
reasonable and detrimental reliance may, if sufficiently unfair and prejudicial, constitute
procedural due process violations.” Jones, 704 F.2d at 717. (citing United States v. Caceres, 440
U.S. 741, 752-53, n.15 (1979)); see also Doe v. Alger, 228 F. Supp. 3d 713, 731 (W.D. Va. 2016).
Furthermore, a court may consider a university’s failure to administer a disciplinary proceeding in
accordance with internal policies and practices in combination with other errors during the
proceeding to conclude that the disciplinary proceeding, on the whole, did not comport with due
process requirements. Doe v. Rector & Visitors of George Mason Univ., 149 F. Supp. 3d 602, 621
(E.D. Va. 2016) (citing Furey v. Temple Univ., 884 F. Supp. 2d 223, 259 (E.D. Pa. 2012)).
Finally, university officials tasked with administering disciplinary proceedings are entitled
to a “‘presumption that [they] can and will decide particular controversies conscientiously and
fairly.’” Id. at 620; see also Doe v. Univ. of Cincinnati, 173 F. Supp. 3d at 601 (“School
disciplinary boards must of course be impartial but they are entitled to a presumption of honesty
and impartiality absent a showing of actual bias.” (citations omitted)).

To overcome this

presumption afforded to university officials, a plaintiff may rely on statements or actions of a

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university official. Doe v. Univ. of Cincinnati, 173 F. Supp. 3d at 601. Although a university
official does not exhibit bias by reaching a temporary decision regarding the disciplinary
proceeding before hearing the accused student’s version of events, where a university official
reaches a firm conclusion regarding the accused student’s guilt prior to hearing the accused
student’s version of events, the university official’s conduct may impair the students opportunity
to be heard at a meaningful time and in a meaningful manner. See Doe v. Rector & Visitors of
George Mason Univ., 149 F. Supp. 3d at 620. To this point, while due process does not require
absolute neutrality on the part of university officials tasked with investigating and administering
disciplinary hearings, a university official crosses the line when he or she directs the investigation
or hearing with the primary purpose of obtaining a conviction rather than seeking out the truth.
ii.

Analysis of Claim

Taking Plaintiff’s allegations as true and drawing all reasonable inferences in favor of
Plaintiff therefrom, this Court concludes that Plaintiff has stated a viable due process claim.
Although Plaintiff received adequate notice of the charges against him, the alleged circumstances
surrounding the investigation and the timing of the hearing, when coupled with the alleged
restraints placed on Plaintiff’s attempt to tell his side of the story at the University Conduct Board
hearing, permit the inference that Plaintiff’s disciplinary hearing did not provide him a meaningful
opportunity to be heard at least with respect to his defense against the charge of “unlawful entry.”
Specific to the investigation and the timing of the hearing, Plaintiff alleges that (1) Defendant
Elrod and Defendant Haas directed the investigator to effectively ignore the February 21, 2015
incident when drafting the investigation report provided to the University Conduct Board;2 (2)

2

Although not sufficient in and of itself to constitute a due process violation, this Court notes that if Elrod and Haas
directed Sears to omit facts about the February 21, 2015 incident and doctor the investigative report provided to the
University Conduct Board to suggest that Plaintiff and Costa fully terminated their relationship on February 21, 2015,
then such direction would contravene App. State’s internal policies. (See Doc. 29-1; Appalachian State University

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Defendant Elrod, after observing two days of the Rule 50(b) hearing on Thursday, September 17,
2015 and Friday, September 18, 2015, and knowing that Investigator Sears was subpoenaed to
testify before the Rule 50(b) Court on Monday, October 5, 2015, sent Plaintiff a notice on
Saturday, September 19, 2015 scheduling Plaintiff’s hearing for Friday October 2, 2015, the last
business day before Sears would testify before the Rule 50(b) Court; and (3) the University
Conduct Board hearing was abruptly scheduled for October 2, 2015 and Defendant Elrod, without
explanation, denied Plaintiff’s request for a continuance until after the imminent conclusion of the
Rule 50(b) hearing—such that Plaintiff could garner his evidence—even though the university
investigation had been ongoing for five and a half months. Specific to the hearing, Plaintiff alleges
that (1) he was unable to present witnesses or evidence that contradicted the complainant’s version
of events; (2) Investigator Sears was not present at the hearing despite it being common practice
for investigators to be present; and (3) he was unable to question Costa about the events of
February 21, 2015.3
While any one of these allegations, when viewed in isolation, would be insufficient to
sustain a due process claim, when the allegations are viewed in total it is reasonable to conclude
that the alleged conduct of the university officials significantly impugned the fairness of the
disciplinary proceeding in that the proceeding was intentionally structured in a manner to deter the
pursuit of the truth on the unlawful entry charge in favor of obtaining a verdict adverse to Plaintiff.4

Code of Student Conduct § 6.06b (“The role of the Investigator is to gather information and impartially review the
alleged incident by interviewing involved parties and witnesses in order to provide a comprehensive review of the
incident.” (emphasis added)); Appalachian State University Code of Student Conduct § 606e (“At the conclusion of
an investigation, the Investigator shall prepare a written report that includes a synopsis of all available relevant
information. . . .” (emphasis added)).
3
Based on Plaintiff’s Complaint and the submissions of the parties, it appears Defendant Elrod was present at
Plaintiff’s University Conduct Board hearing. The scope of Defendant Elrod’s role at the hearing, however, is not
apparent at this juncture.
4
Defendants argue that due process does not afford Plaintiff the right to have his disciplinary hearing after the
conclusion of the Rule 50(b) proceeding. Rather than alleging that the scheduling of the hearing before the conclusion
of the Rule 50(b) hearing necessarily violated his due process, Plaintiff’s Complaint, when viewed on the whole,

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Further, the allegations suggest far more than a mere failure to turn over exculpatory evidence and
instead are emblematic of a cover up by university officials when the facts discovered during the
course of the university investigation did not support the unlawful entry charge.5 That is, the
incident on February 21, 2015, and the potential witness testimony and questions about that
incident and Plaintiff’s and Costa’s relationship, may have demonstrated that Plaintiff and Costa
had an understanding that one could enter the other’s dorm room without first obtaining explicit
consent to enter, thus defeating the “unlawful entry” charge.6
To the extent that Plaintiff’s Complaint alleges that university officials blockaded
Plaintiff’s ability to present evidence regarding the nature and understandings of the relationship
between Plaintiff and Costa, the university officials deprived Plaintiff of a meaningful opportunity
to present his only viable defense to the “unlawful entry” charge. In so concluding, this Court
further finds that Plaintiff’s Complaint states a plausible claim under the Matthews factors in that
(1) Plaintiff’s private interest in a fair hearing was high given the short-term consequence of a
suspension and the long-term reputational ramifications to his pursuit of higher education and
employment given that the non-academic suspension is noted on his transcript; (2) assuming

alleges that the scheduling of the hearing on the eve of the last day of his court proceeding was part of a concerted
effort by Defendant Elrod to deprive Plaintiff of a meaningful and fair hearing before the University Conduct Board.
Thus, while Defendants are correct that due process does not require a university to wait for the conclusion of court
proceedings to hold a university disciplinary hearing, Defendants’ argument misses, and is ineffective, as to the larger
implications of Plaintiff’s allegations.
5
It may even be inferred that the investigatory report was drafted in a manner intentionally to mislead the University
Conduct Board in that the report stated that Plaintiff’s and Costa’s relationship ended on February 21, 2015, while,
under Plaintiff’s alleged version of the facts, university officials responsible for the report knew that Plaintiff and
Costa remained in some form of a relationship through the March 28, 2015 incident.
6
Defendants question whether the February 21, 2015 incident was relevant to the charges against Plaintiff. While the
point Defendants raise may be salient with respect to the charge of “acts of harm,” any suggestion that prior conduct
by Plaintiff and Costa with respect to entering each other’s dorm rooms based on an ongoing implicit consent
understanding is not relevant to the “unlawful entry” charge defies both the rules of evidence and common sense.
Furthermore, the February 21, 2015 incident is relevant in the sense that it gives context to Plaintiff’s and Costa’s
relationship leading up to the March 28, 2015 incident. Finally, unlike university disciplinary hearings involving
sexual misconduct charges, cross-examination of Costa about her entry into Plaintiff’s room on February 21, 2015
need not have touched on Costa’s past sexual history or even her sexual interactions with Plaintiff to assess the facts
at issue relative to the unlawful entry charge such that it cannot be argued that the cross-examination might have been
precluded by the rape-shield doctrine. See Fed. R. Evid. 412; see also Tanyi, 2015 WL 4478853, at *3.

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Plaintiff’s allegations are true, the concealment of facts from the University Conduct Board and
the restrictions placed on Plaintiff’s presentation of evidence created a significant risk of an
erroneous outcome on at least the unlawful entry charge;7 and (3) including facts about the
February 21, 2015 incident, holding Plaintiff’s University Conduct Board hearing a few days later
where the investigation had been open for five and a half months, and permitting Plaintiff to ask
Costa a few questions about the February 21, 2015 incident and present evidence and testimony
about his relationship with Costa prior the March 28, 2015 incident would have placed a negligible
fiscal or administrative burden on the University.
iii.

Qualified Immunity

Defendants Wallace, Haas, and Elrod argue that even if Plaintiff’s Complaint sufficiently
alleges a due process violation claim, qualified immunity forecloses Plaintiff’s claims against them
in their individual capacity. (Doc. 28 at 14-16). “Qualified immunity protects government
officials from monetary damages in a suit brought under 42 U.S.C. § 1983, so long as their conduct
does not violate any clearly established constitutional or statutory rights of which a reasonable
person would have been aware.” Tanyi, 2015 WL 4478853, at *8 (citing Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). In this sense, the doctrine of qualified immunity protects “all but the
plainly incompetent and those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335,
341 (1986). As this Court has already concluded that Plaintiff alleged sufficient facts to sustain a
due process claim, the only question is whether the facts alleged, if substantiated by the evidence,
amount to a due process violation that was clearly established by existing law.

The Court notes that discovery is necessary to determine what Plaintiff’s punishment may have been if the University
Conduct Board had only found him responsible for the acts of harm charge and not for the unlawful entry
charge/whether the finding of responsibility on the unlawful entry charge enhanced the deprivation imposed. At this
juncture in the litigation, this Court must assume that a second finding of responsibility had some impact on the
deprivation imposed.
7

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“[A] defendant can raise the qualified-immunity defense at both the motion to dismiss and
summary judgment stage.” Tobey v. Jones, 706 F.3d 379, 393-94 (4th Cir. 2013) (citing Behrens
v. Pelletier, 516 U.S. 299 (1996)). However, because the issue of qualified immunity may turn on
the facts of a case, “[o]rdinarily, the question of qualified immunity should be decided at the
summary judgment stage.” Willingham v. Crooke, 412 F.3d 553, 558 (4th Cir. 2005). To that
point, courts concluding that an accused student alleged sufficient facts to advance a due process
claim often reserve judgment on an individual university official’s qualified immunity defense
until the case reaches the summary judgment stage. See Tanyi, 2015 WL 4478853, at *9. With
respect to Defendant Elrod, factual development is necessary for this Court to determine if Elrod’s
conduct (1) actually violated Plaintiff’s due process rights; and (2) whether, if Elrod’s conduct
violated Plaintiff’s right to due process, Elrod’s conduct was sufficiently egregious objectively to
deny Plaintiff a fair hearing and a meaningful opportunity to be heard such that no reasonable
government official in Elrod’s place could have concluded that the investigation and the University
Conduct Board hearing satisfied due process.8 Most notably, if the facts establish that Elrod
abruptly scheduled Plaintiff’s University Conduct Board hearing for October 2, 2015 and refused
Plaintiff’s request for a continuance (which Plaintiff requested in part to give himself time to gather
and prepare evidence and witnesses) in Elrod’s hopes of preventing the University Conduct Board,
and App. State administration generally, from learning about his direction to Sears, it is hard to
imagine how a reasonable government official in Elrod’s position could believe that such
comported with the requirements of due process.9 Similarly, further factual development is

8

Notably, because this case is at the motion to dismiss stage, this Court does not have the recording of the disciplinary
hearing, any affidavits or depositions from the witnesses Plaintiff sought to call, or any admissions, interrogatories, or
deposition testimony from the individuals relevant to the disciplinary hearing.
9
Incidentally, this Court concludes that the allegations in Plaintiff’s Complaint, if proven, would be sufficient to
overcome the presumption Defendant Elrod is entitled to with respect to acting in good faith and without bias.

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necessary to determine whether any reasonable government official in Defendant Wallace’s
position could have reviewed Plaintiff’s appeal from the University Conduct Board hearing and
the recording of the hearing and concluded that the procedures underlying the investigation and
hearing provided Plaintiff with a meaningful opportunity to be heard.
This Court, however, is able to reach a conclusion with respect to Defendant Haas’s
qualified immunity defense. Based on the factual allegation in Plaintiff’s Complaint, the only
action attributable to Defendant Haas is that Defendant Haas, along with Defendant Elrod,
instructed Investigator Sears to omit facts relative to the February 21, 2015 incident from the report
provided to the University Conduct Board. (See Doc. 1 at 5). Assuming Plaintiff can prove that
Haas directed Sears to omit relevant details from the report, this lone action by Haas is insufficient
to overcome the limitation imposed by qualified immunity because no binding precedent clearly
establishes that directing an investigator to file an incomplete or misleading report, in and of itself,
denies an accused student of a meaningful opportunity to be heard. Nor would a reasonable
government official recognize that binding precedent discussing due process on a general level
rendered this action a deprivation of due process. Accordingly, Plaintiff’s Fourteenth Amendment
due process claim against Defendant Haas in her individual capacity is DISMISSED WITH
PREJUDICE.
C.

Procedural Due Process Claim under North Carolina Constitution

Article 1, Section 19 of the North Carolina Constitution protects individuals from due
process violations by the state of North Carolina and its officials and states, “[n]o person shall be
taken, imprisoned, or disseized of his freehold, liberties, or privileges, or outlawed, or exiled, or
in any manner deprived of his life, liberty, or property, but by the law of the land.” Article 1,
Section 19’s “‘law of the land’ clause is interpreted to be analogous with the Fourteenth

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Amendment ‘due process of law’ clause.” City of Asheville v. State, 665 S.E. 2d 103, 133 (N.C.
App. Ct. 2008). Accordingly, to the extent Plaintiff has alleged a viable due process claim under
the Fourteenth Amendment he has also alleged a viable claim under Article 1, Section 19 of the
North Carolina Constitution.
Apart from arguing that Plaintiff fails to state a viable due process claim, Defendants argue
that this Court should dismiss Plaintiff’s claim under Article I, Section 19 of the North Carolina
constitution because Plaintiff did not exhaust his state law remedies before bringing this action.
(Doc. 28 at 21). Under North Carolina law, where an adequate state law remedy exists, a plaintiff
may not bring a corum claim for a constitutional violation without first exhausting that state law
remedy. Swain v. Elfland, 550 S.E.2d 530, 536 (N.C. Ct. App. 2001). In his Response, Plaintiff
argues that no adequate state law remedy existed for him to fully administratively appeal the
suspension imposed. (Doc. 29 at 14 (citing “UNC Policy Manual Chapter 100.1-The Code Section
502 page 3 of 3”)). Defendants Reply brief does not acknowledge or counter Plaintiff’s argument
regarding the availability of an adequate state law remedy. (See Doc. 30 at 8-9). As failure to
exhaust state law remedies is an affirmative defense, see Paschal v. Myers, 497 S.E.2d 311, 31314 (N.C. Ct. App. 1998), and as this Court’s research has not revealed a North Carolina case
applying the state law remedy exhaustion defense to an action stemming from a North Carolina
University System student disciplinary proceeding, this Court declines, at this juncture, to dismiss
Plaintiff’s due process corum claim under Article 1, Section 19 of the North Carolina
Constitution.10

This Court’s declination to dismiss Plaintiff’s due process corum claim under Article 1, Section 19 of the North
Carolina Constitution does not preclude Defendants from raising, and more fully briefing, this issue on summary
judgment. Separately, this Court, however, does note that to the extent Plaintiff’s Complaint seeks money damages
against any of the Defendants in their individual capacites, the claim would not conform with North Carolina law.
Swain, 550 S.E.2d at 536.
10

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D.

Equal Protection and Title IX Claims

Counts Three, Four, and Five of Plaintiff’s Complaint respectively assert claims of
discrimination based on gender under the equal protection clause of the Fourteenth Amendment,
under the equal protection clause of Article I, Section 19 of the North Carolina Constitution, and
under Title IX. Plaintiff premises his claim on the scope of App. State’s investigation of his claim
against Costa for the February 21, 2015 incident compared to the investigation into Costa’s claim
against him for the March 28, 2015 incident and on the disparities in the punishments imposed on
him and Costa—he received a suspension while Costa received two weeks of on-campus
probation. Defendants argue that Plaintiff and Costa were not similarly situated and that, even if
the two were similarly situated and Costa received more favorable treatment, Plaintiff’s Complaint
fails to plead sufficient facts alleging that the disparity in treatment was the result of any
discriminatory animus by Defendants on the basis of gender. (Doc. 28 at 16-20; Doc. 30 at 9-13).
To sustain an equal protection claim, a plaintiff “must plead sufficient facts to demonstrate
plausibly that he was treated differently from others who were similarly situated and that the
unequal treatment was the result of discriminatory animus.” Equality in Athletics, Inc. v. Dep’t of
Educ., 639 F.3d 91, 108 (4th Cir. 2011); see also Morrison v. Garraghty, 239 F.3d 648, 654 (4th
Cir. 2001) (“To succeed on an equal protection claim, a plaintiff must first demonstrate that he has
been treated differently from others with whom he is similarly situated and that the unequal
treatment was the result of intentional or purposeful discrimination.”). An equal protection claim
under Article 1, Section 19 of the North Carolina Constitution is subject to the same analysis as an
equal protection claim under the Fourteenth Amendment. State v. Fowler, 676 S.E.2d 523, 544

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(NC. St. App. 2009); (see also Doc. 29 at 16 (Plaintiff conceding that analysis is the same for
federal and state equal protection claims)).
Plaintiff’s equal protection claims fail for two reasons. First, Plaintiff fails to identify a
similarly situated individual. While there are, undoubtedly, some similarities between Plaintiff
and Costa, there are also key differences. Of some import to the similarly situated analysis, the
charges against Plaintiff and Costa differed and the charges against Plaintiff were more numerous.
Of significantly greater import, Costa accepted responsibility for the charges, while Plaintiff
challenged the charges. Costa’s acceptance of responsibility would have naturally limited the
extent of any investigation. It is also well recognized that individuals who accept responsibility
for their actions often receive lesser punishments than those who deny responsibility and are
ultimately adjudged responsible. Second, even assuming that Plaintiff and Costa were similarly
situated, Plaintiff’s Complaint does not contain any allegations permitting a non-speculative
inference that any disparity in treatment was the result of discriminatory animus on the basis of
gender by any of the Defendants. Notably, while Plaintiff’s allegations may be sufficient to permit
an inference that Defendant Elrod acted in a biased manner against Plaintiff, Plaintiff does not
allege any facts—such as statements by Elrod or prior conduct by Elrod or App. State—that
suggest that any bias by Elrod was attributable to Plaintiff’s gender as opposed to the result any
number of possible non-protected factors such as Elrod’s interactions with Plaintiff or items in
Plaintiff’s record not presently known to the Court.11 Finally, Plaintiff’s conclusory allegation that
he was treated “unequally because of his gender” does not save his otherwise deficient Complaint.

Title IX states that “[n]o person . . . 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. § 1681(a). Much as Plaintiff’s Complaint fails to allege facts supporting an inference of
discriminatory animus on the basis of gender for purposes of Plaintiff’s equal protection claims, Plaintiff’s Complaint
likewise fails to contain sufficient allegations to support an inference of discrimination on the basis of sex for purposes
of his Title IX claim.
11

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See Iqbal, 556 U.S. at 678. Accordingly, Defendants’ Motion to Dismiss is GRANTED with
respect to Counts Three, Four, and Five of Plaintiff’s Complaint and those counts are
DISMISSED.
III.

DECRETAL
IT IS, THEREFORE, ORDERED THAT:
(1)

Defendants’ Motion to Dismiss (Doc. 27) is GRANTED IN PART and DENIED

IN PART;
(2)

Plaintiff’s Count Two due process claim against Defendant Hass in her individual

capacity is DISMISSED WITH PREJUDICE based on principles of qualified immunity;
(3)

Plaintiff’s Count Three and Count Four equal protection claims under the

Fourteenth Amendment of the United States Constitution and under Article 1, Section 19 of the
North Carolina Constitution respectively and his Count Five claim under Title IX are all
DISMISSED in their entirety; and
(4)

Consistent with this Order, Plaintiff may proceed on all other claims.

Signed: August 28, 2017

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