Gruver v. State

401 F.Supp.3d 742

Stephen M. GRUVER and Rae Ann Gruver, individually and on behalf of Maxwell R. Gruver, deceased

v.State of LOUISIANA THROUGH the BOARD OF SUPERVISORS OF LOUISIANA STATE UNIVERSITY AND AGRICULTURAL AND MECHANICAL COLLEGE, et al.

CIVIL ACTION 18-772-SDD-EWD

United States District Court, M.D. Louisiana.

Signed July 19, 2019

Donald J. Cazayoux, Jr., John Lane Ewing, Jr., Cazayoux Ewing, LLC, Baton Rouge, LA, Douglas E. Frierberg, Pro Hac Vice, Laura L. Dunn, Pro Hac Vice, Jonathon N. Fazzola, Pro Hac Vice, The Fierberg National Law Group, Traverse City, MI, for Stephen M. Gruver, Rae Ann Gruver.

David Mark Bienvenu, Jr., Anthony Joseph Lascaro, Lexi T. Holinga, Patrick Hayes Hunt, Bienvenu, Bonnecaze, Foco, Viator and Holinga, APLLC, Baton Rouge, LA, for State of Louisiana through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College.

Patrick A. Talley, Jr., Phelps Dunbar LLP, New Orleans, LA, James Walter Green, Taylor Joseph Boudreaux, Phelps Dunbar LLP, Baton Rouge, LA, for Phi Delta Theta Fraternity, Louisiana Beta House Corporation.

Michael Adams Fiser, The Fiser Law Firm, LLC, Baton Rouge, LA, for Ryan M. Isto.

Charles C. Garrison, Caffery, Oubre, Campbell & Garrison, New Iberia, LA, Lauren Alaina Camel Begneaud, Caffery, Oubre, Campbell & Garrison, Lafayette, LA, for Sean Paul Gott.

Patrick Dominic DeRouen, Adam Joseph Boyer, Laurie Lee DeArmond, DeRouen Law Firm, Matthew James Hamilton, Duncan & Sevin, L.L.C., New Orleans, LA, for Zachary A. Castillo.

Keith S. Giardina, Law Offices of Keith Giardina, Baton Rouge, LA, for Patrick A. Forde.

Thomas G. Buck, Brett Tweedel, Blue Williams LLP, Metairie, LA, for Zachary T. Hall.

RULING

SHELLY D. DICK, CHIEF JUDGE

This matter is before the Court on the Motion to Dismiss¹ filed by Defendant, State of Louisiana through the Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU"). Plaintiffs, Stephen M. Gruver and Rae Ann Gruver ("Plaintiffs"), individually and on behalf of their deceased son Maxwell R. Gruver ("Gruver"), filed an Opposition² to this motion, to which LSU filed a Reply ,³ and Plaintiffs filed a Sur-Reply.⁴ For the reasons which follow, LSU's Motion will be granted in part and denied in part.

I. FACTUAL BACKGROUND

This suit arises out of the tragic death of Maxwell R. Gruver, a student formerly enrolled at LSU, who died in September of 2017 following a fraternity-related hazing incident. Plaintiffs allege that, over the summer of 2017, LSU sent a 72-page book entitled Greek Tiger to their son, an incoming freshman.⁵ Plaintiffs allege this book "encourage[s] [new students] to consider participating in fraternity or sorority recruitment,"⁶ and served generally to tout LSU's long tradition of promoting the educational opportunities and benefits of Greek Life to its students. Plaintiffs further allege that, although the second paragraph of Greek Tiger states that "[h]azing and inappropriate behavior are not tolerated by LSU[,]"⁷ in reality, this statement does not apply to male students in fraternities at LSU.

Plaintiffs allege that male students involved in the Greek fraternity system at LSU face a "risk of serious injury and death" that is "far worse than the television portrayals LSU references," and that, "[b]efore Max's death, male students pledging LSU-recognized fraternities have died, been hospitalized on an emergency basis for dangerous alcohol consumption, and suffered broken ribs, cigarette burns and other serious physical injuries."⁸ Plaintiffs further allege that, "[a]s a result of LSU's policy and practice of responding differently to the hazing of male students than the hazing of female students," the hazing of female Greek students is "virtually nonexistent," while the hazing of male Greek students is "rampant."⁹ To demonstrate this claim, Plaintiffs aver as follows:

128. In addition to the death of Max, incidents of dangerous hazing, forced consumption of alcohol, deaths and fraternity injuries involving male fraternity pledges and members at LSU include:

a. 2017: Delta Chi Fraternity; hazing activities in the spring of 2017 including requiring pledges to participate in a "capture game" where pledges capture active members, transport them to an undisclosed location, and drop them off, forcing them make their way back to school on foot.

b. 2016: Kappa Sigma Fraternity; hazing of pledges including forced consumption of alcohol, sleep deprivation, forced calisthenics, branding, paddling, and personal servitude.

c. 2016: Omega Phi Psi Fraternity; hazing of pledges including an "underground" pledging process that LSU found "resulted in the endangering the safety and well-being of LSU Students."

d. 2015-2016: Lambda Chi Alpha Fraternity; hazing of pledges including sleep deprivation, forced consumption of alcohol, personal servitude, and sit-ups and push-ups on trash and broken glass (2015). After another report of hazing a year later, LSU disallowed recruitment and living in the fraternity house for a year (2016).

e. 2015: Beta Kappa Gamma Fraternity; LSU student Praneet Karki died following an evening of hazing involving extreme exercise required of fraternity pledges.

f. 2015: Sigma Chi Fraternity; after LSU student Sawyer Reed died from a drug overdose, the investigation revealed likely hazing of pledges and "rampant" drug use.

g. 2014: Acacia Fraternity; hazing of pledges including forced alcohol consumption, personal servitude, acts of physical violence and forced physical activities, and being forced to eat dog food and rotten substances.

h. 2014: Lambda Chi Alpha Fraternity; alcohol-related medical transport of pledge in conjunction with chapter's bid-day event.

i. 2014: Sigma Phi Epsilon Fraternity; hazing of pledges including pledges being driven off campus, forced to consume alcohol, and then the intoxicated pledges were taken to the Mississippi River levee, dropped off, and told to make their way back to school on foot in the night. After one fraternity event in August of 2014 where alcohol was provided to underage pledges, a pledge was found unresponsive in an LSU residence hall and transported to the hospital.

j. 2013: Pi Kappa Phi Fraternity; hazing of pledges including quizzes pledges with consequences for incorrect answers, confining pledges in a small room with no light and little air, forcing pledges to kneel on broken silverware, personal servitude, and underage and excessive alcohol consumption.

k. 2011-2012: Sigma Alpha Epsilon Fraternity; an investigation revealed hazing and endangering pledges, including hazing that involved forcing pledges to perform physical activities, military style workouts and calisthenics, such as bows and tows and wall sits, throughout the night.

l. 2012: Sigma Chi Fraternity; hazing of pledges including cigarette burns and forced wrestling of one another resulting in broken ribs.

m. 2012: Acacia Fraternity; violations of LSU's rules and alcohol policies arising from an incident in which three kegs of beer were provided for all active members and pledges of the fraternity.

n. 2011: Pi Kappa Phi Fraternity; in the fall of 2011, fraternity placed on probation by LSU and fraternity's national headquarters for what the fraternity later acknowledged were "serious incidents of hazing."

o. 2011: Sigma Alpha Epsilon; hazing of pledges including forced physical activities and personal servitude.

p. 2006: Phi Gamma Delta Fraternity; pledge burned at fraternity event after falling in bonfire.

q. 1997: Sigma Alpha Epsilon Fraternity; hazing which involved forced, excessive consumption of alcohol resulted in the death of fraternity pledge Benjamin Wynn, whose blood alcohol content was measured at .588%, almost 6 times the legal limit, and the hospitalization of fraternity pledge Donald Hunt.

r. 1979: Theta Chi Fraternity; a car struck and killed a fraternity pledge who was blindfolded and participating in a ritual march along a roadside.¹⁰

Plaintiffs claim that, "[o]f the 27 fraternities on LSU's campus, which restrict membership to male students, only four were without risk-management violations in the five years preceding Max's death," and, "during those five years, there were at least 24 formal hazing investigations involving fraternities, 20 of which led to findings of policy violations.¹¹ Plaintiffs contend, "[i]n contrast, in that same period, female students participating in LSU Greek Life never risked or suffered injury or death from dangerous hazing."¹² Plaintiffs maintain that these "stark differences" result from "LSU's policy and practice of responding differently to the hazing of male students than the hazing of female students,"¹³ and further allege that,

[Y]ear after year, LSU has remained deliberately indifferent to the serious and substantial risks male students face in seeking the educational opportunities and benefits of LSU Greek Life, and has refused and failed to make any material changes to the manner in which it recognizes, promotes, regulates, manages, and sanctions fraternities on campus, leaving them unsafe and imposing serious and substantial risk to male students seeking the educational benefits and opportunities touted by LSU.¹⁴

Additionally, Plaintiffs claim that, "[u]nlike LSU fraternities, LSU sororities, which restrict membership to female students, do not have a culture or long-documented history of dangerous hazing and misconduct," and "when LSU has received reports of hazing at its sororities, the sanctions LSU has imposed on the sororities have been significantly greater in length and degree than sanctions LSU generally imposes on fraternities for comparable misconduct."¹⁵ Plaintiffs claim that LSU's deliberate indifference to the great risk of injury and death to male Greek students demonstrates that male Greek students at LSU "have entirely different, and unequal, access to educational opportunities and benefits offered by LSU Greek Life. LSU is deliberately indifferent to those risks, though...