Reed v. S. Ill. Univ.

BAILEY REED, Plaintiff, v. SOUTHERN ILLINOIS UNIVERSITY d/b/a SOUTHERN ILLINOIS UNIVERSITY AT EDWARDSVILLE,RANDALL PEMBROOK, KARA SHUSTRIN, and CHAD MARTINEZ, Defendants.

Case No. 3:18-CV-1968-GCS

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF ILLINOIS

June 10, 2020

MEMORANDUM & ORDER

SISON, Magistrate Judge:

In her second amended complaint, Plaintiff Bailey Reed brings five claims against Defendants Southern Illinois University d/b/a Southern Illinois University at Edwardsville ("SIUE"), Randall Pembrook, Kara Shustrin, and Chad Martinez following an allegedly mishandled Title IX investigation into a campus sexual assault that Reed reported to school officials. Reed alleges Title IX violations against SIUE for demonstrating deliberate indifference to sexual harassment and a hostile environment (Count I); for failure to accommodate, failure to eliminate a hostile environment, and failure to prevent retaliation against her (Count II); for gender discrimination based on an erroneous result (Count III); and for fostering an official policy and practice of deliberate indifference to sexual harassment and violence on campus (Count V). She also alleges violations of her equal protection rights to personal security and bodily integrity by all Defendants (Count IV). By motion dated May 21, 2020, SIUE seeks to strike certain portions of Reed's second amended complaint and asks the Court to dismiss Counts II, III, and V. (Doc. 103). Reed responded in opposition on June 4, 2020. For the reasons delineated below, SIUE's motion is granted in part and denied in part.

MOTIONS TO STRIKE

SIUE asks the Court to strike allegations in the second amended complaint that fall into three categories: (1) references to Ashley Cox as a defendant, who is no longer a party to this action; (2) references to Ashley Cox as an employee of SIUE; and (3) references to actions by Plaintiff's counsel during the investigation into Reed's allegations of sexual assault. Though motions to strike are disfavored, Federal Rule of Civil Procedure 12(f) allows district courts to strike "an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." A moving party must show that the "challenged allegations 'are so unrelated to plaintiff's claim as to be devoid of merit, unworthy of consideration, and unduly prejudicial.'" Siegel v. HSBC Holdings, plc, 283 F.Supp.3d 722, 730 (N.D. Ill. 2017)(quoting E & J Gallo Winery v. Morand Bros. Beverage Co., 247 F.Supp.2d 979, 982 (N.D. Ill. 2003)(internal quotations omitted)). That is, SIUE, as the moving party, bears the burden of demonstrating that the allegations should be stricken.

The Seventh Circuit directs that district courts should only grant motions where a moving party can show that the challenged language either "bears no possible relation to the controversy" (i.e., whether it is relevant to the claims at issue) or "may cause the objecting party prejudice." Talbot v. Robert Matthews Distrib. Co. 961 F.2d 654, 664 (7th Cir. 1992). In resolving a Rule 12(f) motion, the Court applies the same standard as thatapplied under Rule 12(b)(6). Reed's well-pleaded allegations are accepted as true and are viewed in the light most favorable to her. See Santiago v. Wells, 599 F.3d 749, 756 (7th Cir. 2010).¹

Reed does not object to SIUE's request to strike references to Ashley Cox as a defendant, explaining the references were the result of a clerical error. As such, the references will be stricken, and the Court turns to SIUE's remaining arguments. In a brief argument, SIUE asks the Court to strike allegations in five paragraphs that refer to Ashley Cox as an employee of SIUE. Of the five paragraphs, the first, paragraph 5, is a paragraph listing the parties and is covered by the motion to strike references to Cox as a defendant. The other four describe Cox as an employee of "Call for Help," a non-profit rape crisis center and allege that she also was an employee of SIUE. SIUE calls the allegations conclusory, unsupported, and contrary to undisputed facts, but they raise no developed argument supporting the motion to strike. As such, the motion to strike the references to Cox as an SIUE employee fails to meet the high burden for imposing such a disfavored remedy.

Similarly, the argument that the statements about counsel's role in the second amended complaint's factual allegations must be stricken is undeveloped. SIUE recites a portion of Illinois Supreme Court Rule 3.7, which provides that, generally, lawyers should not "act as advocate at a trial in which the lawyer is likely to be a necessarywitness," and suggests, without analysis or support, that it is unnecessary and improper for Plaintiff's counsel to inject herself into the factual allegations in this action. However, the plain language of the rule refers to disqualification only at trial, and given that the case is still in the pleading stage, such an argument is clearly premature. See, e.g., DT Boring, Inc. v. Chicago Public Building Commission, No. 15-C-11222, 2016 WL 3580756, at *5 (N.D. Ill. June 28, 2016)(noting that plaintiff's motion for disqualification under Rule 3.7 should be denied because the action was still in the pleading stage).

There are exceptions to the general rule regarding lawyers as necessary witnesses, which are not addressed in the motion, and SIUE fails to establish that Plaintiff's counsel is a necessary witness. In fact, Reed in her response explains that the allegations can be established through methods that do not include the attorney's testimony, which means that the attorney is not a "necessary witness." See, e.g., Walton v. Diamond, No. 12-C-4493, 2012 WL 6587723, at *2 (N.D. Ill. Dec. 14, 2012)(stating that definition of "necessary witness" is "one whose testimony is unobtainable elsewhere[]" and that attorney is not a necessary witness where evidence can be elicited through other means). The allegations have gone unchallenged in this action through multiple iterations of Reed's complaint, and the Court will not strike them now without a thorough analysis from the moving party.

MOTION TO DISMISS

1. Motion to Dismiss Standard

A complaint must include enough factual content to give the opposing party notice of what the claim is and the grounds upon which it rests. See Bell Atlantic Corp. v.Twombly, 550 U.S. 544, 555 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 698 (2009). To satisfy the notice-pleading standard of Rule 8, a complaint must provide a "short and plain statement of the claim showing that the pleader is entitled to relief" in a manner that provides the defendant with "fair notice" of the claim and its basis. Erickson v. Pardus, 551 U.S. 89, 93 (2007)(citing Twombly, 550 U.S. at 555 and quoting Fed. R. Civ. Proc. 8(a)(2)). In ruling on a motion to dismiss for failure to state a claim, a court must "examine whether the allegations in the complaint state a 'plausible' claim for relief." Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011)(citing Iqbal, 556 U.S. at 677-678). A complaint "must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face," rather than providing allegations that do not rise above the speculative level. Id.

2. Allegations Relevant to Counts II, III, and V

SIUE seeks dismissal of Counts II, III, and V of Reed's second amended complaint. The Court has recited Reed's allegations at length in earlier orders and need not repeat them here. See Doc. 58, 59, 91. Relevant to Count II, Reed alleges that SIUE demonstrated deliberate indifference to sexual harassment and to a hostile educational environment by failing to investigate in a timely manner and failing to discipline the student who Reed alleges sexually assaulted her. She also claims that she was excluded from participating in, and was denied the benefits of, her educational program due to: training failures by SIUE, the favoring of male students in Title IX investigations, displays of hostility towards gender and reliance on gender based attitudes and stereotypes by SIUE employees and officials, offering of more rights and protections to a male student than toa female student, and through other actions which she claims demonstrate both a failure to accommodate her safety needs and a desire to undermine her credibility in a public manner.

In Count III, Reed alleges that SIUE displayed gender discrimination in its investigation of her allegations of sexual assault, pointing to Defendant Martinez's allegedly biased and inappropriate questioning of Reed and other female witnesses and to his reliance on gender stereotypes in his investigative findings. She also alleges that the appellate process was tainted by gender bias, leading SIUE to reach an erroneous result based on that bias. In Count V, Reed alleges that SIUE had an official policy, as evidenced by pattern and practice, of deliberate indifference to sexual harassment and sexual violence on campus. That policy allegedly created a heightened risk of students being victimized.

3. Count II and Count III: Deliberate Indifference Claims Based on Title IX Investigation and Post-Report Conduct by Defendants

Title IX states that "[n]o 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 educational program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). SIUE argues that Count II must be dismissed because neither the Supreme Court nor the Seventh Circuit expressly recognize claims for failure to accommodate, creation of a hostile environment, or retaliation under Title IX arising out of student-on-student discrimination. SIUE cites to Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999), in which the Supreme Court weighed "whether a private damagesaction may lie against the school board in cases of student-on-student harassment," and concluded that "it may, but only where the funding...