Owens v. Louisiana State University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF LOUISIANA

ABBY OWENS, ET AL. CIVIL ACTION

VERSUS NO. 21-242-WBV-SDJ

LOUISIANA STATE UNIVERSITY, ET AL.

ORDER AND REASONS

Before the Court is Defendant Jonathan Sanders’ Motion to Dismiss Pursuant

to Federal Rule of Civil Procedure 12(b)(6).1 Plaintiffs oppose the Motion,2 and

Sanders has filed a Reply.3 After careful consideration of the parties’ memoranda

and the applicable law, the Motion is GRANTED.

I. FACTUAL and PROCEDURAL BACKGROUND4

This case involves allegations by ten former students of Louisiana State

University and Agricultural and Mechanical College (“LSU”) that LSU and its

Athletic Department funded and implemented a purposefully deficient sexual

misconduct and Title IX reporting scheme separate from LSU’s official Title IX office

to keep sexual assault claims within the Athletic Department.5 In their Second

Amended Complaint and Jury Demand (“Second Amended Complaint”), Abby Owens,

Samantha Brennan, Calise Richardson, Jade Lewis, Kennan Johnson, Elisabeth

1 R. Doc. 203.

2 R. Doc. 211.

3 R. Doc. 227.

4 The factual background of this case was extensively detailed in the Court’s Order and Reasons

granting Jennie Stewart’s Motion to Dismiss (R. Doc. 317) and, for the sake of brevity, will not be

repeated here.

5 R. Doc. 1 at ¶ 10; R. Doc. 22 at ¶ 10; R. Doc. 182 at ¶ 25.

Andries, Jane Doe, Ashlyn Robertson, Corinn Hovis, and Sarah Beth Kitch

(collectively, “Plaintiffs”), allege that while attending school at LSU’s Baton Rouge

campus between 2009 and 2021, the defendants, LSU’s Board of Supervisors, Jennie

Stewart, Verge Ausberry, Miriam Segar, and Johnathan Sanders (collectively,

“Defendants”) repeatedly engaged in discriminatory, retaliatory, and other unlawful

actions in their interactions with Plaintiffs and in response to Plaintiffs’ reports of

Title IX violations and violations of LSU’s Code of Student Conduct, thereby violating

their own policies.6 Plaintiffs allege that LSU handled Title IX complaints made

against student-athletes differently than complaints made against non-athletes.7

Plaintiffs further allege that, “Title IX complaints against student-athletes are

purposefully buried or diverted so as to ensure that those complaints were never

properly investigated or addressed and the student-athletes are not negatively

impacted or prevented from concentrating on their athletics, all of which benefits

LSU financially and causes further harm to Plaintiffs.”8 Plaintiffs assert that

Defendants’ actions and inactions in response to their reports of Title IX violations

subjected them to additional harassment and created a sexually hostile environment

on campus.9

Plaintiffs allege that they were victims of sex-based discrimination, including

rape, sexual assault, sexual harassment, and/or stalking, that was perpetrated by

male LSU students and a male professor between 2009 and 2020, and that one

6 R. Doc. 182 at ¶ 36.

7 Id. at ¶ 43.

8 Id. at ¶ 44.

9 Id. at ¶ 45.

plaintiff was the victim of verbal and emotional abuse by an LSU tennis coach.10

Although the alleged sexual misconduct occurred more than a year before Plaintiffs

filed this lawsuit, Plaintiffs allege that they were unaware of LSU’s inadequate Title

IX reporting policies until the March 2021 publication of the Husch Blackwell report.

According to Plaintiffs, LSU retained the Husch Blackwell law firm in November

2020 to investigate the school’s handling of several Title IX-related incidents, as well

as LSU’s Title IX policies and procedures.11 Plaintiffs allege that Husch Blackwell

publicly released its investigative report and findings on March 5, 2021, concluding

that various incidents of athletics-related misconduct had not been appropriately

reported to LSU’s Title IX Coordinator and voicing concern about a lack of reporting

prior to November 2016.12 Husch Blackwell also found that LSU’s Title IX Office had

never been appropriately staffed or provided with the independence and resources to

carry out Title IX’s mandates, noting that the Title IX Office “has at time not handled

those matters reported to it appropriately.”13 Husch Blackwell noted that its

concerns about reporting were not limited to athletics, and that it found deficiencies

in a variety of different matters.14

In the Second Amended Complaint, Plaintiffs allege that they could not have

known that LSU and its employees, including the individual defendants, had

concealed disclosures of sexual misconduct that should have been reported to LSU’s

10 See, Id. at ¶¶ 113-741.

11 Id. at ¶ 47.

12 Id. at ¶¶ 51-52.

13 Id. at ¶¶ 53-54.

14 Id. at ¶¶ 52 & 54.

Title IX Office, that LSU purposely handled complaints of sexual misconduct

perpetrated by student athletes or others affiliated with the LSU Athletics

Department in a different manner than complaints of sexual misconduct perpetrated

by other individuals, and the defendants intentionally instituted a process of

responding to disclosures of Title IX violations in a manner designed to deter any

future disclosures.15

Pertinent to the instant Motion, Plaintiffs assert the following three claims

under 42 U.S.C. § 1983 against Jonathan Sanders in his individual capacity as the

Associate Dean of Students and Director of LSU’s Office of Student Advocacy &

Accountability:16 (1) First Amendment Retaliation; (2) Denial of Equal Protection

under the Fourteenth Amendment; and (3) Denial of Substantive and Procedural Due

Process under the Fourteenth Amendment.17 In his Motion to Dismiss, Sanders

asserts that the claims asserted by Owens, Brennan, Johnson, Doe, Robertson, and

Kitch should be dismissed because they make no allegations against him individually,

and that the claims asserted by Richardson, Andries, Lewis, and Hovis should be

15 Id. at ¶ 83.

16 Id. at ¶ 22. The Court notes that in listing the defendants in this case, Plaintiffs seem to assert

that Sanders is being sued “in his official and personal capacity.” Id. In the heading of Counts V, VI,

and VII, however, which contain the only claims asserted against Sanders, Plaintiffs assert that the

claims are brought against the individual defendants, including Sanders, “in their individual

capacities.” Id. at pp. 134, 142, & 145. Plaintiffs further assert, in each count, that, “[A] valid

individual capacity claim requires a Section 1983 plaintiff to ‘establish that the defendant was either

personally involved in a constitutional deprivation or that his wrongful actions were causally

connected to the constitutional deprivation.” Id. at ¶¶ 1007, 1065, & 1093 (quoting Louisiana Cleaning

Sys. v. Brown, Civ. A. No. 14-2853, 2015 WL 6869907, at *7 (W.D. La. Nov. 9, 2015) (James, J.))

(internal quotation and quotation marks omitted). Thus, Plaintiffs seem to assert these claims against

Sanders in his personal capacity. See, Brown, Civ. A. No. 14-2853, 2015 WL 6869907, at *5-7

(addressing the plaintiffs’ claims brought against a sheriff in his official and individual capacities).

17 R. Doc. 182 at ¶¶ 754-1118.

dismissed as time-barred.18 Sanders then raises the defense of qualified immunity,

asserting that Plaintiffs have failed to plead allegations that would overcome

qualified immunity for Counts V, VI, and VII.19 Plaintiffs oppose the Motion,

asserting that Sanders is not entitled to qualified immunity and that their claims are

not time-barred because they did not begin to accrue until the release of the Husch

Blackwell report in March 2021.20 In response, Sanders maintains that Plaintiffs’

claims are time-barred and that he is entitled to qualified immunity.21

II. LEGAL STANDARD

A. Fed. R. Civ. P. 12(b) Motion to Dismiss.

Under Federal Rule of Civil Procedure 12(b)(6), a defendant can seek dismissal

of a complaint, or any part of it, for failure to state a claim upon which relief may be

granted.22 To survive a Rule 12(b)(6) motion to dismiss, “a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible

on its face.’”23 “A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”24 “The plausibility standard is not akin to a

18 R. Doc. 203.

19 R. Doc. 203-1 at pp. 10-13.

20 R. Doc. 211.

21 R. Doc. 227.

22 Fed. R. Civ. P. 12(b)(6).

23 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 1949 173 L.Ed.2d 868 (2009) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

24 Gentilello v. Rege, 627 F.3d 540, 544 (5th Cir. 2010) (quoting Ashcroft, 556 U.S. at 678, 129 S.Ct. at

1949) (quotation marks omitted).

probability requirement, but it asks for more than a sheer possibility that a defendant

has acted unlawfully.”25

A court must accept all well-pleaded facts as true, viewing them in the light

most favorable to the plaintiff.26 The Court, however, is not bound to accept as true

conclusory allegations, unwarranted factual inferences, or legal conclusions. 27

“Dismissal is appropriate when the complaint on its face shows a bar to relief.”28 In

deciding a Rule 12(b)(6) motion to dismiss, a court is generally prohibited from

considering information outside the pleadings, but may consider documents outside

of the complaint when they are: (1) attached to the motion; (2) referenced in the

complaint; and (3) central to the plaintiff’s claims.29 The Court can also take judicial

notice of matters that are of public record, including pleadings that have been filed

in a federal or state court.30

B. Liability under 42 U.S.C. § 1983 and Qualified Immunity

Title 42 U.S.C. § 1983 creates a damages remedy for the violation of federal

constitutional or statutory rights under color of state law. Specifically, § 1983

provides that:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State . . . subjects, or

causes to be subjected, any . . . person within the

jurisdiction thereof to the deprivation of any rights,

25 Iqbal, 556 U.S. at 679, 129 S.Ct. at 1949 (quotation omitted).

26 Gines v. D.R. Horton, Inc., 699 F.3d 812, 816 (5th Cir. 2012) (quoting In re Katrina Canal Breaches

Litig., 495 F.3d 191, 205 (5th Cir. 2007)).

27 Plotkin v. IP Axess Inc., 407 F.3d 690, 696 (5th Cir. 2005).

28 Cutrer v. McMillan, 308 Fed.Appx. 819, 820 (5th Cir. 2009) (quotation and internal quotation marks

omitted).

29 Maloney Gaming Mgmt., LLC v. St. Tammany Parish, 456 Fed.Appx. 336, 340-41 (5th Cir. 2011).

30 In re American Intern. Refinery, 402 B.R. 728, 749 (W.D. La. 2008) (citing Cisco Systems, Inc. v.

Alcatel USA, Inc., 301 F. Supp. 2d 599, 602 n.3 (E.D. Tex. 2004)).

privileges, or immunities secured by the Constitution and

laws, shall be liable to the party injured.31

Because § 1983 merely provides a remedy for designated rights, rather than creating

any substantive rights, “an underlying constitutional or statutory violation is a

predicate to liability.”32 To establish § 1983 liability, the plaintiff must establish the

following three elements: (1) deprivation of a right secured by the United States

Constitution or federal law; (2) that occurred under color of state law; and (3) was

caused by a state actor.33

Qualified immunity is a defense to § 1983 claims that “shields government

officials from civil damages liability unless the official violated a statutory or

constitutional right that was clearly established at the time of the challenged

conduct.”34 The Supreme Court has held that courts may grant qualified immunity

on the ground that a purported right was not “clearly established” by prior case law,

without resolving the often more difficult question of whether the purported right

exists at all.35 According to the Supreme Court, “This approach comports with our

usual reluctance to decide constitutional questions unnecessarily.”36 The Supreme

Court has further held that, “A clearly established right is one that is ‘sufficiently

clear that every reasonable official would have understood that what he is doing

31 42 U.S.C. § 1983.

32 Harrington v. Harris, 118 F.3d 359, 365 (5th Cir. 1997) (citation omitted).

33 Victoria W. v. Larpenter, 369 F.3d 475, 482 (5th Cir. 2004) (citation omitted).

34 Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft

v. al-Kidd, 563 U.S. 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)).

35 Reichle, 566 U.S. at 664, 132 S.Ct. at 2093 (citing Pearson v. Callahan, 555 U.S. 223, 227, 129 S.Ct.

808, 172 L.Ed.2d 565 (2009)).

36 Reichle, 566 U.S. at 664, 132 S.Ct. at 2093 (citing authority).

violates that right.’”37 “Where no controlling authority specifically prohibits a

defendant’s conduct[,] . . . the law cannot be said to be clearly established . . . .

[G]eneralizations and abstract propositions are not capable of clearly establishing the

law.”38 While there need not be a case directly on point, “existing precedent must

have placed the statutory or constitutional question beyond debate.”39 “Put simply,

qualified immunity protects ‘all but the plainly incompetent or those who knowingly

violate the law.’”40 The Supreme Court has repeatedly advised courts “not to define

clearly established law at a high level of generality,” explaining that, “The dispositive

question is ‘whether the violative nature of particular conduct is clearly

established.’”41

Once a government official asserts the defense of qualified immunity, the

burden shifts to the plaintiff to negate the defense.42 To overcome a claim of qualified

immunity, a plaintiff must demonstrate: (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.43 The Supreme Court has held that, “lower courts have

37 Mullenix v. Luna, 577 U.S. 7, 11-12, 136 S.Ct. 305, 308, 193 L.Ed.2d 255 (2015) (quoting Reichle v.

Howards, 566 U.S. 658, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)).

38 Smith v. Davis, 507 Fed.Appx. 359, 361 (5th Cir. 2013) (quoting Morgan v. Swanson, 659 F.3d 359,

372 (5th Cir. 2011) (en banc)) (internal quotation marks omitted).

39 Mullenix, 577 U.S. at 11, 136 S.Ct. at 308 (quoting Ashcroft, 563 U.S. at 741, 131 S.Ct. 2074)

(internal quotation marks omitted).

40 Mullenix, 577 U.S. at 12, 136 S.Ct. at 308 (quoting Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct.

1092, 89 L.Ed.2d 271 (1986)). See, Brumfield v. Hollins, 551 F.3d 322, 326-27 (5th Cir. 2008) (same).

41 Mullenix, 577 U.S. at 12, 136 S.Ct. at 308 (quoting Ashcroft, 563 U.S. at 742, 131 S.Ct. 2074)

(internal quotation marks omitted) (emphasis added in Mullenix).

42 Collier v. Montgomery, 569 F.3d 214, 217 (5th Cir. 2009) (citation omitted).

43 Ashcroft v. al-Kidd, 563 U.S. 731, 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011) (citation

omitted).

discretion to decide which of the two prongs of qualified-immunity analysis to tackle

first.”44

III. ANALYSIS

A. Failure to State a Claim under 42 U.S.C. § 1983

Sanders first asserts that the § 1983 claims asserted by Owens, Brennan,

Johnson, Doe, Robertson, and Kitch should be dismissed because they fail to make

any allegations as to Sanders in the Second Amended Complaint.45 Sanders further

asserts that references to “Defendants,” collectively, do not meet the standards

necessary to overcome a Rule 12(b)(6) motion to dismiss a § 1983 lawsuit.46 Plaintiffs

do not address Sanders’ argument directly, choosing instead to file an Opposition

brief that is nearly identical to the opposition briefs they filed in response to motions

to dismiss filed by Jennie Stewart, Verge Ausberry, and Miriam Segar. 47

Nonetheless, Plaintiffs seem to address only the specific allegations of retaliation

made by Jade Lewis, Corinn Hovis, and Elisabeth Andries against Sanders in their

Opposition brief.48 In response, Sanders points out that the Second Amended

Complaint includes only six allegations pertaining to Sanders, which are asserted by

Andries, Hovis, Lewis, and Richardson.49

While Plaintiffs’ Second Amended Complaint distinguishes the actions of

individual defendants by name in some parts, other parts refer only to the actions of

44 Ashcroft, 563 U.S. at 735, 131 S.Ct. at 2080 (citing Pearson v. Callahan, 555 U.S. 223, 236, 129 S.Ct.

808, 172 L.Ed.2d 565 (2009)).

45 R. Doc. 203-1 at p. 7.

46 Id

47 Compare R. Doc. 211 with R. Docs. 210, 212, & 213.

48 See, R. Doc. 211 at pp. 8-9, 11, & 15.

49 R. Doc. 227 at pp. 3-4 (citing R. Doc. 182 at ¶¶ 422-425, 438, 450, 554-555, 681, & 240).

the “Defendants” or “LSU and its employees.” This type of group pleading, where all

of the defendants are lumped together and identical claims are asserted as to each

defendant, prevents the Court from determining which defendants are allegedly

responsible for which allegedly unlawful action. The Fifth Circuit has held that,

“while referring to a collective group of defendants is not a fatal pleading deficiency,

‘[e]ach defendant is [still] entitled to know what he or she did that is asserted to be

wrongful.’”50 The Fifth Circuit further instructed that, “Because the notice pleading

requirement of the Federal Rules of Civil Procedure entitle each defendant to know

what he or she did that is asserted to be wrongful, allegations based on a ‘theory of

collective responsibility’ cannot withstand a motion to dismiss.”51 While the Court

finds Plaintiffs’ allegations against “Defendants,” in globo, in Counts V, VI, and VII

are not sufficient under Fed. R. Civ. P. 8(a)(2), because Rule 12(b)(6) motions to

dismiss are viewed with disfavor in this Circuit and are rarely granted,52 the Court

will not dismiss Plaintiffs’ allegations or their due process claims based upon

Plaintiffs’ use of group pleading. Instead, the Court will analyze the specific claims

made by Plaintiffs as to Sanders to determine whether dismissal is warranted.

With that in mind, the Court agrees that Owens, Brennan, Johnson, Doe,

Robertson, and Kitch have failed to state a 42 U.S.C. § 1983 claim against Sanders.

The Second Amended Complaint is devoid of any allegations that Sanders had any

50 Martinez v. City of North Richland Hills, Case No. 20-10521, 2021 WL 742662, at *4 (5th Cir. 2021)

(quoting Heartland Consumer Products LLC v. DineEquity, Inc., Civ. A. No. 1:17-CV-01035-SEB-TAB,

2018 WL 465784, at *4 (S.D. Ind. Jan. 18, 2018)).

51 Martinez, 2021 WL 742662, at *4 (quoting Bank of Am., N.A. v. Knight, 725 F.33d 815, 818 (7th Cir.

2013)).

52 Financial Acquisition Partners LP v. Blackwell, 440 F.3d 278, 286 (5th Cir. 2006) (quoting Lowrey

v. Tex. A & M Univ. Sys., 117 F.3d 242, 247 (5th Cir. 1997)).

interactions with these six plaintiffs with respect to their sexual abuse allegations or

that Sanders was ever made aware of their allegations.53 As such, the Court finds

that Owens, Brennan, Johnson, Doe, Robertson, and Kitch have failed to allege facts

sufficient to state a plausible § 1983 claim against Sanders and those claims must be

dismissed. Accordingly, the remainder the Court’s analysis will address only the §

1983 claims asserted against Sanders by Richardson, Andries, Hovis, and Lewis.

B. Prescription/Tolling of Plaintiffs’ § 1983 Claims

Sanders argues that the § 1983 claims asserted by the remaining plaintiffs,

Richardson, Andries, Lewis, and Hovis, must be dismissed on the grounds that they

are time-barred by the one-year prescriptive period set forth in La. Civ. Code art.

3492.54 The Fifth Circuit has held that, “A statute of limitations may support

dismissal under Rule 12(b)(6) where it is evident from the plaintiff’s pleadings that

the action is barred and the pleadings fail to raise some basis for tolling or the like.”55

There is no federal statute of limitations for actions brought under 42 U.S.C. § 1983.56

When that is the case, “the settled practice is to borrow an ‘appropriate’ statute of

limitations from state law.”57 In Wilson v. Garcia, the Supreme Court held that a §

1983 claim is best characterized as a personal injury action and, as such, is governed

53 See, R. Doc. 182 at ¶¶ 242-288, 289-326, 327-361, 556-596, 597-650, and 699-741.

54 R. Doc. 203-1 at pp. 8-10.

55 King-White v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015) (citing Jones v. Alcoa, Inc.,

339 F.3d 359, 366 (5th Cir. 2003)).

56 See, King-White, 803 F.3d at 758.

57 Id. (citations omitted). The Fifth Circuit noted, however, that, “Of course, this rule only applies to

statutes enacted prior to passage of 28 U.S.C. § 1658, which now governs in such circumstances. See

28 U.S.C. § 1658(a); Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 371, 124 S.Ct. 1836, 158 L.Ed.2d

645 (2004)).” See, Redburn v. City of Victoria, 898 F.3d 486, 496 (5th Cir. 2018) (“Courts considering

claims brought under § 1983 must borrow the relevant state’s statute of limitations for personal injury

actions.”) (citing authority).

by the forum state’s statute of limitations for personal injury actions.58 In Owens v.

Okure, the Supreme Court clarified that when a state has multiple statutes of

limitations for personal injury actions, a § 1983 claim should be governed by the

general or residual statute for personal injury actions.59 Accordingly, this Court will

apply Louisiana’s one-year prescriptive period for personal injury actions60 to

Plaintiffs’ § 1983 claims, rather than the three-year period applicable to sexual

assaults.61

The Fifth Circuit has held that, “Absent tolling, the limitations period runs

from the moment a plaintiff’s claim ‘accrues,’ and while we borrow the limitations

period from state law, ‘the particular accrual date of a federal cause of action is a

matter of federal law.’”62 Thus, federal law governs when a § 1983 claim accrues.63

A claim “accrues” under federal law when the plaintiff becomes aware that he has

suffered an injury or has sufficient information to know that he has been injured.64

According to the Fifth Circuit, a plaintiff’s knowledge encompasses two elements: (1)

the existence of the injury; and (2) causation, that is, the connection between the

58 Wilson v. Garcia, 471 U.S. 261, 276-80, 105 S.Ct. 1938, 1947-49, 85 L.Ed.2d 254 (1985), superseded

by statute as stated in Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 124 S.Ct. 1836, 158 L.Ed.2d

645 (2004).

59 488 U.S. 235, 249-50, 109 S.Ct. 573, 581-82, 102 L.Ed.2d 594 (1989).

60 La. Civ. Code art. 3492.

61 La. Civ. Code art. 3496.2.

62 King-White, 803 F.3d at 762 (quoting Frame v. City of Arlington, 657 F.3d 215, 238 (5th Cir. 2011)).

63 Redburn, 898 F.3d at 496 (citing Piotrowski v. City of Houston, 51 F.3d 512, 516 n.10 (5th Cir. 1995));

Smith v. Regional Transit Authority, 827 F.3d 412, 421 (5th Cir. 2016) (citing Jacobsen v. Osborne,

133 F.3d 315, 319 (5th Cir. 1998)).

64 Redburn, 898 F.3d at 496 (citing Piotrowski, 51 F.3d at 516). See, Smith, 827 F.3d at 421 (“This

court has stated that ‘[u]nder federal law, a cause of action accrues when the plaintiff knows or has

reason to know of the injury which is the basis of the action.’”) (quoting Gartrell v. Gaylor, 981 F.2d

254, 257 (5th Cir. 1993)).

injury and the defendant’s actions.65 “However, the plaintiff need not know that a

legal cause of action exists; she need only know facts that would support a claim.”66

Since the Louisiana statute of limitations applies to Plaintiffs’ § 1983 claims,

Louisiana equitable tolling principles apply. 67 Louisiana law allows for the

suspension of prescription under the doctrine of contra non valentem.68 The

Louisiana Supreme Court has recognized four factual situations in which the doctrine

of contra non valentem applies to suspend the prescriptive period, the most pertinent

to this case being when “the cause of action is neither known nor reasonably knowable

by the plaintiff even though plaintiff’s ignorance is not induced by the defendant.”69

“However, the doctrine of contra non valentem only applies in ‘exceptional

circumstances.’”70 Sometimes referred to as the “discovery rule,”71 the Louisiana

Supreme Court has further clarified that, “[t]his principle will not exempt the

plaintiff’s claim from the running of prescription if his ignorance is attributable to his

own willfulness or neglect; that is, a plaintiff will be deemed to know what he could

by reasonable diligence have learned.”72 Similarly, a plaintiff may invoke the

65 King-White, 803 F.3d at 762 (quoting Piotrowski, 237 F.3d at 576).

66 Sherman v. Irwin, Civ. A. No. 17-4061, 2018, WL 3632360, at *3 (E.D. La. July 31, 2018) (Barbier,

J.) (citing King-White, 803 F.3d at 762).

67 Green v. Doe, 260 Fed.Appx. 717, 720 (5th Cir. 2007) (citing Rotella v. Pederson, 144 F.3d 892, 897

(5th Cir. 1998)).

68 Broussard v. Brown, 599 Fed.Appx. 188 (5th Cir. 2015) (citing Corsey v. Louisiana, 375 So.2d 1319,

1321-22 (La. 1979)).

69 Renfroe v. State ex rel. Dept. of Transp. and Development, 2001-1646 (La. 2/26/02), 809 So.2d 947,

953 (citing Plaquemines Parish Comm. Council v. Delta Dev. Co., 502 So.2d 1034 (La. 1987)).

70 Renfroe, 809 So.2d at 953 (quoting La. Civ. Code art. 3467, Official Revision Comment (d); State ex

rel. Div. of Admin. v. McInnis Brothers Construction, Inc., 97-0742 (La. 10/21/97), 701 So.2d 937, 940).

See, Ellis v. Evonik Corp., Civ. A. No. 21-1089, 2022 WL 1719196, at *3 (E.D. La. May 27, 2022) (Vance,

J.) (same).

71 Ellis, Civ. A. No. 21-1089, 2022 WL 1719196, at *3.

72 Renfroe, 809 So.2d at 953-54 (quoting Corsey v. State of Louisiana, Through the Department of

Corrections, 375 So.2d 1319, 1322 (La. 1979)).

fraudulent concealment doctrine by proving two elements: (1) that the defendants

concealed the conduct complained of; and (2) the plaintiff failed, despite the exercise

of due diligence on her part, to discover the facts that form the basis of her claim.73

To satisfy the first element, the defendant must have engaged in affirmative acts of

concealment.74 The Fifth Circuit has held that silence is not enough, and that the

defendant “must be guilty of some trick or contrivance tending to exclude suspicion

and prevent inquiry.”75

Here, Sanders argues that the § 1983 claims asserted by Richardson, Andries,

Lewis, and Hovis are prescribed because all of their allegations of harassment and

sexual misconduct occurred on or before February 2020, more than one year before

Plaintiffs filed their Complaint on April 26, 2021.76 Relying upon a 2017 case from

the Western District of Texas, Doe I v. Baylor University, Plaintiffs assert that their

§ 1983 claims were timely-filed because Plaintiffs were unaware that their injuries

were causally connected to actions and inactions by LSU until the release of the

Husch Blackwell report in March 2021.77 While not a model of clarity, Plaintiffs seem

to invoke both the doctrine of contra non valentem and the fraudulent concealment

doctrine in asserting that LSU’s actions and inactions “were actively concealed by the

Defendant from Plaintiffs,”78 that “LSU and its employees went to great lengths to

73 State of Tex. v. Allan Const. Co., Inc., 851 F.2d 1526, 1528 (5th Cir. 1988) (citation omitted).

74 Allan, 851 F.2d at 1528-29 (citing authority). See, Rx.com v. Medco Health Solutions, Inc., 322

Fed.Appx. 394, 397 (5th Cir. 2009) (citing Allan, 851 F.2d at 1531)).

75 Allan, 851 F.2d at 1529 (quoting Crummer Co. v. Du Pont, 255 F.2d 425, 432 (5th Cir.1958)) (internal

quotation marks omitted).

76 R. Doc. 203 at p. 1; R. Doc. 203-1 at pp. 9-10.

77 R. Doc. 211 at pp. 16-25 (citing Doe 1, 240 F. Supp. 3d 646, 662-63 (W.D. Tex. 2017)).

78 R. Doc. 211 at pp. 23-25. See, Id. at pp. 18-22.

ensure students did not understand their rights or LSU’s obligations under Title

IX,”79 and that LSU and its employees “purposefully buried or ignored Plaintiffs’

reports of assault and abuse.”80 Plaintiffs claim that the Husch Blackwell report

details “numerous significant actions and inactions by Sanders,” including that he

misrepresented why he did not want to issue a no-contact directive in Lewis’ case,

that he knew a significant amount of information about how much abuse Lewis had

suffered, and his inappropriate actions and inactions in another Title IX

investigation.81 In response, Sanders maintains that the § 1983 claims of Richardson,

Andries, Lewis, and Hovis are time-barred.82

For the reasons set forth in the Court’s February 17, 2023 Order and Reasons

granting Jennie Stewart’s Motion to Dismiss,83 the Court finds that, on their face, all

of § 1983 claims asserted by Richardson, Andries, Lewis, and Hovis against Sanders

accrued outside the applicable one-year statute of limitations.84 Plaintiffs allege that

Richardson was raped by an LSU football player during her freshman year at LSU,

which began in the fall of 2014, that she was raped by a football recruit in the fall of

2015, that she was verbally and physically abused by LSU football player John Coe

between the summer of 2016 and 2017 and had reported the abuse by October 2016,

and that LSU football player John Doe attempted to rape her in the fall of 2016 and

79 Id. at p. 25.

80 Id.

81 Id. at pp. 23-24 (citing R. Doc. 22-1 at pp. 78, 81, 83, 119-120).

82 R. Doc. 227 at p. 6.

83 R. Doc. 317 at pp. 13-18.

84 For the reasons stated in the Court’s prior orders granting the motions to dismiss filed by Jennie

Stewart, Verge Ausberry, and Miriam Segar, the Court also finds that the’ § 1983 claims asserted by

Owens, Brennan, Johnson, Doe, Robertson, and Kitch against Sanders accrued outside the applicable

one-year statute of limitations. Id. See, R. Docs. 317, 319, & 321.

she reported it to her direct supervisor the following day.85 Plaintiffs allege that

Andries was sexually assaulted by John Roe on a fraternity bus trip in October 2016,

that John Roe attempted to sexually assault her again in July 2017, and that she

reported the first assault to her LSU therapist in the fall of 2017.86 Plaintiffs allege

that Lewis was physically assaulted by John Coe at least six times between January

2017 and May 2018, and that she first disclosed the abuse to the tennis team athletic

trainer in May 2017.87 Plaintiffs allege that Hovis was raped by LSU football player

John Loe on January 24, 2020, that she immediately reported it to her Resident

Assistant, that she reported that she believed she had been drugged, that she filed a

report with LSUPD, and that Baton Rouge Police Department officers were called but

refused to take a statement from Hovis.88

Plaintiffs’ allegations are deeply disturbing. Accepting Plaintiffs’ allegations

set forth in the Second Amended Complaint as true, all of the harassment and abuse

alleged by Richardson, Lewis, Andries, and Hovis occurred between 2014 and

February 2020,89 which is more than a year before Plaintiffs filed this suit on April

26, 2021.90 But the Court’s inquiry does not end there, as Plaintiffs argue that the

Court should toll the statute of limitations based upon contra non valentem and the

publication of the Husch Blackwell report in March 2021. The Court finds, for the

same reasons set forth in its three prior orders granting the motions to dismiss filed

85 R. Doc. 182 at ¶¶ 121-122, 124-130, 147-162, 182-191.

86 Id. at ¶¶ 364-373, 376-377, 381.

87 Id. at ¶¶ 456-459, 462-467, & 477-479.

88 Id. at ¶¶ 652-671.

89 Id. at ¶¶ 121-122, 124-130, 147-162, 182-191, 364-373, 376-377, 381, 456-459, 462-467, 477-479, &

652-671.

90 R. Doc. 1.

by Jennie Stewart, Verge Ausberry, and Miriam Segar, that the publication of the

Husch Blackwell report does not support the application of contra non valentem to

the facts set forth in this case.91

The Court likewise finds that the publication of the Husch Blackwell report

does not support the application of the fraudulent concealment doctrine with respect

to Sanders. While Plaintiffs never mention the phrase “fraudulent concealment” in

their Opposition brief,92 Plaintiffs seem to allege some sort of concealment by Sanders

with respect to Andries, Richardson, Lewis, and Hovis. Regarding Andries, Plaintiffs

allege that she met with Sanders on or about August 22, 2019, at Sanders’ request,

to discuss the appeals and sanctioning process concerning John Roe, during which

Andries told Sanders that she was aware of a third student who had been assaulted

by John Roe.93 Plaintiffs allege that Sanders never contacted that student, never

reported this incident to the police, to the Title IX Office, or to any other entity, and

that Andries’ report was never investigated.94 Plaintiffs further allege that until the

publication of the Husch Blackwell report, Andries could not have known that, “LSU,

specifically Defendant Sanders, concealed information regarding John Roe’s other

victims.”95 Plaintiffs, however, do not allege that Sanders concealed any information

from Andries that prevented Andries from realizing her cause of action against

Sanders, which is the relevant inquiry for fraudulent concealment. Plaintiffs fail to

91 R. Docs. 317, 319, & 321.

92 See, generally, R. Doc. 211.

93 R. Do. 182 at ¶¶ 422-424.

94 Id. at ¶ 425.

95 Id. at ¶ 450(a).

explain how Sanders’ alleged failure to interview and/or report the abuse of someone

other than Andries constitutes an affirmative act of concealment that prevented

Andries from discovering her cause of action against Sanders in the exercise of due

diligence until the publication of the Husch Blackwell report in March 2021. The

Court therefore finds that Plaintiffs have not invoked the fraudulent concealment

doctrine with respect to Andries and that her claims are time-barred.96

The Court reaches the same conclusion with respect to Richardson, Lewis, and

Hovis. The only allegation made by Richardson against Sanders is that, “until the

release of the [Husch Blackwell] Report in March 2021, Richardson could not have

known that . . . LSU, including specifically Defendants Stewart, Sanders, and Segar,

had specific knowledge of the pervasive sex discrimination and retaliation she and

others suffered.”97 There are no other allegations made by Richardson against

Sanders, much less any alleged affirmative acts of concealment by Sanders.98

Regarding Lewis, Plaintiffs allege that Sanders interviewed John Coe on or about

July 11, 2018 regarding his attack of Lewis on June 18, 2018, but not about any of

the other assaults Lewis had reported.99 Plaintiffs allege that in the early hours of

June 18, 2018, Coe, who was intoxicated at the time, entered Lewis’ apartment,

jumped on her while she was sleeping in her bed, began strangling her, then hit Lewis

and ripped an earring out of her ear.100 Plaintiffs further allege that Lewis’ roommate

96 State of Tex. v. Allan Const. Co., Inc., 851 F.2d 1526, 1528-29 (5th Cir. 1988) (citing authority). See,

Rx.com v. Medco Health Solutions, Inc., 322 Fed.Appx. 394, 397 (5th Cir. 2009) (citing Allan, 851 F.2d

at 1531)).

97 R. Doc. 182 at ¶ 240(a).

98 Id. at ¶¶ 121-241.

99 R. Doc. 182 at ¶¶ 518-519.

100 Id. at ¶¶ 505-506.

woke up to Lewis screaming and called the police, and that LSUPD arrived and

separated Lewis and Coe, but did not make any arrests.101 Plaintiffs allege that when

Sanders interviewed Lewis approximately two weeks after interviewing Coe, she told

Sanders that Coe had punched her in the past.102 Plaintiffs allege that, “At least

three witnesses told Defendant Sanders about the full extent of John Coe’s abuse of

Plaintiff Lewis,” including Lewis’ roommate, one of Lewis’ teammates, and Coe’s

roommate and teammate on the football team.103 Plaintiffs then allege that until the

release of the Husch Blackwell report, Lewis could not have known that, “At least

three witnesses told Defendant Sanders about the full extent of John Coe’s abuse of

Plaintiff Lewis, but Defendant Sanders only questioned John Coe about the June 18,

2018 incident.”104 Plaintiffs, however, do not allege that Sanders concealed any

information regarding Lewis’ allegations of abuse. In fact, Plaintiffs allege that

Sanders did not do enough. As noted earlier, the Fifth Circuit has advised that

“Concealment by defendant only by silence is not enough. [The defendant] must be

guilty of some trick or contrivance tending to exclude suspicion and prevent

inquiry.”105 Plaintiffs have not alleged such actions. Accordingly, Plaintiffs have not

invoked the fraudulent concealment doctrine with respect to Lewis and her claims

are time-barred.106

101 Id. at ¶¶ 507-508.

102 Id. at ¶¶ 520-521.

103 Id. at ¶¶ 523-526.

104 Id. at ¶ 554(f).

105 State of Tex. v. Allan Const. Co., Inc., 851 F.2d 1526, 1529 (5th Cir. 1988) (quoting Crummer Co. v.

Du Pont, 255 F.2d 425, 432 (5th Cir.1958)) (internal quotation marks omitted).

106 State of Tex. v. Allan Const. Co., Inc., 851 F.2d 1526, 1528-29 (5th Cir. 1988) (citing authority). See,

Rx.com v. Medco Health Solutions, Inc., 322 Fed.Appx. 394, 397 (5th Cir. 2009) (citing Allan, 851 F.2d

at 1531)).

The Court reaches the same conclusion regarding Hovis. Plaintiffs allege in

the Second Amended Complaint that John Loe twice violated a no-contact directive

issued by LSU by having his girlfriend contact Hovis in May 2020.107 Plaintiffs allege

that, “This contact was reported to Defendants Stewart and Sanders, but LSU did

not take any disciplinary action against Loe for violations of the no-contact

directive.”108 Plaintiffs again allege that Sanders was silent. Hovis makes no other

allegations against Sanders in the Second Amended Complaint, let alone any

allegations of affirmative acts of concealment. Thus, the Court finds that Plaintiffs

have not invoked the fraudulent concealment doctrine with respect to Hovis and her

claims against Sanders are time-barred.

Based on the foregoing, the Court finds that the statute of limitations is not

equitably tolled as to the § 1983 claims asserted by Andries, Richardson, Lewis, or

Hovis against Sanders and that their claims are time-barred.109

C. Leave to Amend is Denied

In his Motion, Sanders asserts that he is entitled to summary judgment of

Plaintiffs’ claims and that Plaintiffs should not be given another opportunity to

amend their allegations because they “have had three chances to make sufficient

allegations against Defendant, but they have failed.”110 Thus, Sanders argues any

107 R. Doc. 182 at ¶¶ 653, 679, & 680.

108 Id. at ¶ 681.

109 Although the Court need not address the issue of qualified immunity because it has determined

that all of Plaintiffs’ § 1983 claims asserted against Sanders are time-barred, the Court notes that it

previously determined that the other individual defendants, Jennie Stewart, Verge Ausberry, and

Miriam Segar are entitled to qualified immunity as to all of Plaintiffs’ § 1983 claims. See, R. Docs.

317, 319, & 321. Based upon the qualified immunity analysis set forth in the Court’s three prior

Orders, Sanders also would have been entitled to qualified immunity as to Plaintiffs’ § 1983 claims.

110 R. Doc. 203-1 at p. 14.

further efforts to amend would be futile.111 Plaintiffs do not request leave to amend

their Second Amended Complaint in their Opposition brief, nor do they address

Sanders’ allegations regarding the futility of any further amendment.112

The Court agrees with Sanders and finds that granting leave to amend is not

appropriate in this case under Fed. R. Civ. P. 15. This Court will “freely give leave

[to amend] when justice so requires,”113 but leave to amend “is by no means

automatic.”114 In exercising its discretion, this Court may consider such factors as

“undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure

to cure deficiencies by amendments previously allowed, undue prejudice to the

opposing party by virtue of allowance of the amendment, and futility of the

amendment.”115 “An amendment is futile if it would fail to survive a Rule 12(b)(6)

motion.”116

Applying those factors here, the Court finds that any amendment would likely

be futile in light of the fact that the Court has determined that all of Plaintiffs’ § 1983

claims are time-barred.117 The Court further finds that granting Plaintiffs leave to

amend would cause undue delay in this case. More importantly, however, Plaintiffs

have already been afforded two opportunities to amend their allegations,118 and have

111 Id.

112 See, generally, R. Doc. 211.

113 Fed. R. Civ. P. 15(a).

114 Halbert v. City of Sherman, Tex., 33 F.3d 526, 529 (5th Cir. 1994) (citation omitted).

115 Nolan v. M/V SANTE FE, 25 F.3d 1043 (5th Cir. 1994) (citing Gregory v. Mitchell, 635 F.2d 199,

203 (5th Cir. 1981)).

116 Marucci Sports, L.L.C. v. National Collegiate Athletic Ass’n, 751 F.3d 368, 378 (5th Cir. 2014)

(citation omitted).

117 Reichle v. Howards, 566 U.S. 658, 664, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012) (citing Ashcroft

v. al-Kidd, 563 U.S. 735, 131 S.Ct. 2074, 2080, 179 L.Ed.2d 1149 (2011)).

118 See, R. Docs. 1, 22, 177, 180, 181, & 182.

repeatedly failed to cure the deficiencies through amendments previously allowed.

Based upon the foregoing and exercising its discretion under Fed. R. Civ. P. 15,

Plaintiffs will not be afforded a third opportunity to amend their claims against

Sanders.

IV. CONCLUSION

For the foregoing reasons, IT IS ORDERED that Defendant Jonathan

Sanders’ Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)1!9 is

GRANTED. All of Plaintiffs’ claims asserted against Jonathan Sanders in Counts

V, VI, and VII of the Second Amended Complaint are hereby DISMISSED WITH

PREJUDICE.

New Orleans, Louisiana, February 17, 2023.

(lend (2 Vetter

WENDY B. VITTER

United States District Judge

9 R, Doc. 203.