# Doe 7 v. Southeast Missouri State University

> District Court, E.D. Missouri · May 5, 2022

URL: https://www.frixlaw.com/law-library/cases/10236986

## Case

- **Court:** District Court, E.D. Missouri
- **Decided:** May 5, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10236986

## How later opinions describe it (automated extraction)

- holding that a university’s mishandling of a sexual misconduct disciplinary proceeding gave rise to a plausible Title IX claim by the accused

## Opinion text

EASTERN DISTRICT OF MISSOURI
SOUTHEASTERN DIVISION

JANE DOE 7, )
)
Plaintiff, )
)
vs. ) Case No. 1:20-CV-00172 JAR
)
BOARD OF REGENTS, SOUTHEAST )
MISSOURI STATE UNIVERSITY, et al.,1 )
)
Defendants. )

MEMORANDUM AND ORDER

Plaintiff Jane Doe 7 was a freshman at Southeast Missouri State University (“SEMO”) in
August 2016 when she was raped by a fellow student on campus. Plaintiff alleges the response to
her sexual assault was deliberately indifferent and deprived her of access to educational benefits
or opportunities provided by SEMO. She asserts claims under Title IX of the Education
Amendments Act of 1972, 20 U.S.C. § 1861(a) (“Title IX”) and 42 U.S.C. § 1983: violation of
Title IX based on SEMO’s deliberate indifference to sexual harassment and hostile environment
(Count I); violation of Title IX based on SEMO’s failure to accommodate, provide interim safety
measures, and/or prevent retaliation (Count II); violation of Plaintiff’s right to personal security
and bodily integrity under 42 U.S.C. § 1983 by both SEMO and SEMO Department of Public
Safety Officer Jyothi Dirnberger (“Dirnberger”) (Count III); and violation of Title IX based on
SEMO’s gender discrimination in education (Count IV). (Amended Complaint (“AC”), Doc. No.
30). Plaintiff seeks compensatory damages, statutory interest, attorneys’ fees and costs.2

1 Pursuant to RS Mo. § 174.040, the Board of Regents of Southeast Missouri State University, not the
institution itself, is the proper entity “to sue and be sued.” Thus, the proper defendant in this suit should
be identified as Board of Regents, Southeast Missouri State University.
2 Plaintiff has voluntarily dismissed her claim for punitive damages. (See Doc. No. 68 at 3).
1
Plaintiff moves for summary judgment on her Title IX claims against SEMO (Doc. No. 40);

Defendants move for summary judgment on all of Plaintiff’s claims (Doc. No. 44). The motions
are fully briefed and ready for disposition.
I. Facts3
SEMO, a state university located in Cape Girardeau, Missouri, is a federally funded
education program under Title IX. In August 2016, Plaintiff was a freshman at SEMO. On the
night of August 27, 2016, she and a friend attended an off-campus fraternity party. In the early
morning hours of August 28, 2016, Plaintiff left the party and took a sober car back to campus.
There Plaintiff encountered a male student unknown to her who offered to take her to her dorm
room. The male student was later identified by SEMO Department of Public Safety (“DPS”)

Officers as Jordan Huerta (“Huerta”). Instead of going back to Plaintiff’s room, however, Huerta
took her to his room where he raped her. After the assault, Huerta took Plaintiff back to her
dormitory.
Upon returning to her dorm room, Plaintiff told her roommate she had been raped. Her
roommate called the Residence Advisor who in turn called campus police. DPS Officer
Dirnberger and DPS Officer Sergeant Anthony Cooper responded to the call. Officer Dirnberger
took Plaintiff’s statement and then went with Plaintiff to the hospital for a rape kit test. At that
time, Plaintiff advised Officer Dirnberger she did not want to press criminal charges because she
was afraid of the perpetrator.4 While at the hospital, Plaintiff met with SEMO crisis counselor

3 The facts are taken from the parties’ statements of uncontroverted material facts (Doc. Nos. 42, 46) and
additional statements of uncontroverted material facts (Doc. Nos. 51, 66) and are not in dispute except
where so noted.

4 DPS did submit charges to the Cape Girardeau Prosecuting Attorney as part of their investigation
process; however, the Prosecuting Attorney declined to prosecute.

2
option to meet with her the next day. Plaintiff saw St. Sauver a few times.

By the end of the day on August 28, 2016, DPS investigators had identified Huerta as
Plaintiff’s assailant but according to Plaintiff, neither SEMO nor DPS informed her of Huerta’s
identity. (When Plaintiff was informed of Huerta’s identity is a disputed issue of fact.) Once
identified, SEMO issued a verbal no-contact order to Huerta. After August 28, 2016, Plaintiff
had no further contact with Officer Dirnberger.
On August 29, 2016, Dr. Randy Carter, then Assistant Dean of Students overseeing
SEMO’s Office of Student Conduct, met with Huerta and his mother. Huerta was issued a Letter
of No Contact,5 which he signed.
On September 6, 2016, Plaintiff noticed Huerta sitting behind her in her dormitory

cafeteria and recognized him as her assailant. The facts surrounding this incident are disputed.
According to Plaintiff, Huerta followed her to the mail room while pointing and laughing. SEMO
asserts that Huerta never spoke to Plaintiff and that there was no physical contact between the
two. In any event, Plaintiff contacted DPS who immediately responded and investigated.
Thereafter, SEMO gave Huerta “the option to move off-campus” after “people started getting
word that he may be the accused student” and he did move into a different dormitory on the other
side of campus.
During the relevant time period, SEMO had a policy for handling Title IX sexual assault
cases involving its students entitled “Guidelines for Defining and Adjudicating Sexual Assault
Cases Involving Students.” The policy was published on SEMO’s website.

5 A Letter of No Contact is a university-related document that prohibits students from having any contact
during the time the guideline is in place. (Doc. No. 42-19 at 9).
3
accused student and the complainant (sometimes referred to as the victim); reporting and

resource options; as well as confidentiality information. Students found responsible for sexual
assault or sexual misconduct face a range of sanctions, including suspension or expulsion.
SEMO’s policy set out the steps to be followed in the process of a Student Conduct
investigation as follows:
(1) Upon receipt of a complaint by the Office of Student Conduct, both DPS and
SEMO’s Title IX Coordinator are notified.6

(2) Determine if available resources (mental health/medical) have been made
available to the complainant.

(3) Determine if a law enforcement investigation is occurring.

(4) If the complainant intends to remain anonymous, then a “Reluctant Witness
Letter” is provided to the student (through Counseling and Disability Services or
other office if necessary). If the complainant wishes to pursue a University and/or
criminal case, explain the process and again make sure that the complainant is
briefed on available resources.

(5) Contact accused student and initiate “Letter of No Contact” and make any
other necessary modifications in his/her living, classroom, or campus
circumstances. Complete any other interim measures that are necessary and
explain the student conduct process to the accused student.

(6) Interview complainant, accused student, and any other witnesses.

(7) Contact Title IX Coordinator via email and provide summary of fact finding –
determination is made about Official Charge Letter.

(8) (If applicable) Charge Letter is sent to accused student and judicial conference
is arranged. Case reports and information are read, explained, and/or discussed
with accused student and complainant.

(9) Hearing is scheduled and completed with the Administrative Panel for sexual
assault and sexual misconduct cases. Complainant may appear in person, via

6 SEMO’s policy guidelines provided that in the absence of a complainant (and/or if a complainant
decides not to participate in the student conduct process) SEMO may initiate a complaint against an
accused student “if that is in the best interest of the health and safety of the University.”
4
impact statement to be read by hearing panel prior to sanctions being imposed.

(10) Results of hearing are given in writing to accused student as hearing concludes.

(11) Results of hearing are provided to complainant in writing via email.

(See generally Doc. No. 42-19). SEMO’s Title IX Coordinator is charged with “making sure that
the process is followed appropriately and that both the rights of the complainant and the accused
student are protected in the process.” (Id.).
SEMO’s policy further provides that student victims have the right to be notified of
available counseling or student services as well as options for changing academic and living
situations if such changes are “reasonable available”; the right to make a victim-impact statement
to the hearing board; the right to a campus restraining order or notice against trespass; and the
right to have a complaint of sexual misconduct responded to quickly and with sensitivity by
campus police and member of the Office of Student Conduct.
Among the rights of the accused are the right to protection under the Family Educational
Rights and Privacy Act; the right to notice of charges and procedural information; the right to
have access to and to examine all records and evidence in the case; the right to maintain
academic work through reasonable accommodations; the right to rebut the testimony of
adversarial witnesses; and the right to an advisor.
Also during the relevant period, incoming SEMO students and their parents received a
letter from the Dean of Students concerning the Student Code of Conduct. Incoming students
were also required to complete the My Student Body and First STEP programs, and an
orientation course entitled SE 101, which SEMO asserts covered Title IX, sexual harassment,
sexual misconduct, and methods of reporting incidents of sexual assault. Plaintiff disputes that
these programs addressed Title IX or students’ rights after a sexual assault on campus.
5
assault. According to Defendants, Kasey Fraser-Smith, a Title IX investigator with the Office of

Student Conduct, first met with Plaintiff on September 15, 2016 to discuss the student conduct
process and again on October 25, 2016 to interview her regarding the assault. Plaintiff does not
remember meeting with Fraser-Smith on those dates and asserts that Fraser-Smith first reached
out to her on October 10, 2016.
On November 1, 2016, Fraser-Smith met with Huerta and his mother to discuss SEMO’s
judicial and hearing process. Huerta declined to be interviewed without an attorney present. On
November 14, 2016, Fraser-Smith sent a charge letter request to Sonia Rucker. Rucker issued a
formal charge against Huerta for violations of student conduct on November 18, 2016. The
charge was emailed from Fraser-Smith to Huerta; Plaintiff was not copied on the email. Huerta

voluntarily withdrew from SEMO before the student conduct hearing set for December 1, 2016,
and SEMO issued a Notice Against Trespass to Huerta for any and all campus facilities as well
as surrounding areas, i.e. parking lots and grounds.
Plaintiff continued to attend SEMO following the assault. She lived on campus for the
remainder of her freshman and sophomore years and moved off campus for her junior and senior
years. In the first semester of her junior year, Plaintiff was hospitalized for a week after
experiencing a breakup with her boyfriend and ongoing stress from her freshman year and
missed a month of school. During that time, Plaintiff was in contact with L. R. “Trae” Mitten, a
Title IX investigator from SEMO’s Office of Institutional Equity and Diversity. Mitten worked
with Plaintiff’s teachers to ensure that her coursework was accepted and that she completed her

classes.
During the first semester of her senior year, Plaintiff was bullied by some of her sorority
sisters, with whom she was living, for going home during recruitment. She raised the bullying
6
Plaintiff moved home for the second semester of her senior year. Mitten again worked with

Plaintiff and her teachers to get her the classes she needed to graduate. Plaintiff graduated in the
spring of 2020.
II. Legal standard
Summary judgment is appropriate when no genuine issue of material fact exists in the
case and the movant is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986). The initial burden is placed on the moving party. City of Mt. Pleasant,
Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). If the record
demonstrates that no genuine issue of fact is in dispute, the burden then shifts to the non-moving
party, who must set forth affirmative evidence and specific facts showing a genuine dispute on

that issue. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). In determining whether
summary judgment is appropriate in a particular case, the Court must review the facts in a light
most favorable to the party opposing the motion and give that party the benefit of any inferences
that logically can be drawn from those facts. The Court is required to resolve all conflicts of
evidence in favor of the nonmoving party. Osborn v. E.F. Hutton & Co., Inc., 853 F.2d 616, 619
(8th Cir. 1988). Where parties file cross-motions for summary judgment, the legal standard does
not change. Each motion must be evaluated independently to determine whether a genuine issue
of material fact exists and whether the movant is entitled to judgment as a matter of law. Jaudes
v. Progressive Preferred Ins. Co., 11 F. Supp.3d 943, 947 (E.D. Mo. 2014).
III. Title IX

“Title IX provides 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 education program or activity receiving Federal financial assistance.’ ” Does 1-2 v. Regents
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on-student sexual assault and sexual harassment constitute forms of sex discrimination under

Title IX. Hughes v. Missouri Baptist Univ., No. 4:19-CV-02373-AGF, 2021 WL 2042264, at *9
(E.D. Mo. May 21, 2021) (citing Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 650 (1999);
Shank v. Carleton Coll., 993 F.3d 567, 573 (8th Cir. 2021)).
Victims of student-on-student sexual assault or sexual harassment have a private right of
action for damages against educational institutions like SEMO that receive federal funding.
Shank, 993 F.3d at 573. But an educational institution is only liable under Title IX for “its own
misconduct.” Ostrander v. Duggan, 341 F.3d 745, 750 (8th Cir. 2003) (citing Davis, 526 U.S. at
640). “A plaintiff seeking to prove a Title IX violation in the wake of a peer sexual assault must
establish that the institution was: (1) deliberately indifferent, (2) to known acts of discrimination,

(3) which occurred under its control.” Shank, 993 F.3d at 573 (citation omitted). “A Title IX
plaintiff is also required to show the discrimination was so severe, pervasive, and objectively
offensive that it can be said to deprive the victim of access to the educational opportunities or
benefits provided by the school.” Id. (citation omitted). Finally, “[t]o be actionable an
institution’s deliberate indifference must either have caused the harassment or made students
vulnerable to it.” Roe v. St. Louis Univ., 746 F.3d 874, 882 (8th Cir. 2014). This requires a Title
IX plaintiff to demonstrate a “causal nexus” between the college’s conduct and the student’s
experience of sexual harassment or assault. Shank, 993 F.3d at 573 (citing K.T. v. Culver-
Stockton Coll., 865 F.3d 1054, 1058 (8th Cir. 2017).
“Deliberate indifference is a stringent standard of fault that cannot be predicated upon

mere negligence.” Doe v. Dardanelle Sch. Dist., 928 F.3d 722, 725 (8th Cir. 2019) (quoting Doe
v. Flaherty, 623 F.3d 577, 584 (8th Cir. 2010)). In the Title IX context, deliberate indifference to
peer harassment requires a showing that the educational institution’s “response to the harassment
8
648. This “clearly unreasonable” standard is intended to afford flexibility to school

administrators and prevent courts from “second-guessing the disciplinary decisions made by
school administrators.” Dardanelle, 928 F.3d at 726. Such flexibility is particularly important
when considering administrators’ dual interests in protecting the rights of student victims and
those of students accused of sexual misconduct. See Doe v. Univ. of Arkansas – Fayetteville,
974 F.3d 858, 868 (8th Cir. 2020) (holding that a university’s mishandling of a sexual
misconduct disciplinary proceeding gave rise to a plausible Title IX claim by the accused). The
deliberate indifference standard is often a fact question, but “[i]n an appropriate case, there is no
reason why courts, on a motion … for summary judgment … could not identify a response as not
‘clearly unreasonable’ as a matter of law.” Davis, 526 U.S. at 649.

IV. Discussion
A. Motion to strike
As a threshold matter, Plaintiff moves to strike the “History” section of Defendants’
Memorandum of Law in Support of their Motion for Summary Judgment as unsupported by the
evidence. She argues this section of Defendants’ memorandum recites facts that are different
from those set forth in their Statement of Uncontroverted Material Facts and fails to include
citations to any record evidence in the case. While Plaintiff seems to suggest that Defendants’
History section lacks evidentiary support, she fails to specifically identify which facts therein are
unsupported by the record.
Fed. R. Civ. P. 12(f) provides that a court may “strike from a pleading an insufficient

defense or any redundant, immaterial, impertinent, or scandalous matter.” “Only material
included in a ‘pleading’ may be the subject of a motion to strike, and courts have been unwilling
to construe the term broadly.” 2 James W. Moore, et al., Moore’s Federal Practice § 12.37[2]
9
an answer to a counterclaim, an answer to a cross-claim, an answer to a third-party complaint

and a reply to an answer. See id. “Motions, briefs or memoranda, objections, or affidavits may
not be attacked by the motion to strike.” 2 Moore’s Federal Practice § 12.37[2]. This Court has
generally restricted the use of motions to strike to material contained in pleadings. See, e.g.,
Donnelly v. St. John’s Mercy Med. Ctr., No. 4:08-CV-347 CAS, 2009 WL 1259364, at *1-2
(E.D. Mo. May 5, 2009) (statement of uncontroverted material facts and response to motion for
summary judgment were not pleadings and could not be attacked with a motion to strike);
Coleman v. City of Pagedale, 4:06CV01376 ERW, 2008 WL 161897, at *4 (E.D. Mo. Jan. 15,
2008) (sur-reply and memorandum were not pleadings and could not be attacked with a motion
to strike). Defendants’ memorandum in support of summary judgment is not a pleading.

Therefore, a motion to strike under Fed. R. Civ. P. 12(f) is inapplicable and will, therefore be
denied.
B. Title IX claims against SEMO
Plaintiff argues she is entitled to summary judgment on her Title IX claims because she
has established that SEMO was deliberately indifferent to her sexual assault. Her complaint
includes numerous allegations of SEMO’s deliberate indifference. In Count I, she asserts that
SEMO’s refusal to tell her the identity of the person who assaulted her left her more vulnerable
to future harassment because she was constantly fearful of encountering him on campus. In
Count II, Plaintiff asserts that SEMO failed to inform her of her rights under Title IX, failed to
provide her with educational accommodations, and failed to protect her from retaliation. In

Count IV, she alleges SEMO’s student conduct process discriminates against the victims of
sexual violence and sexual harassment on campus, the majority of whom are female students.
Plaintiff points to the fact that it took SEMO three months to issue a charge in her case and that
10
his academic work, whereas she was required to prove a disability sufficient to warrant such

accommodations. In response to Plaintiff’s motion and in support of its own, Defendants argue
the record does not support a finding of deliberate indifference because their actions were
objectively reasonable in all respects. The Court will address each of the parties’ arguments in
turn.
Count I
Plaintiff contends SEMO was deliberately indifferent by withholding the name of her
assailant and leaving her vulnerable to further harassment as evidenced by her encounter with
Huerta approximately one week after the assault, when she saw him in her dormitory cafeteria
and recognized him as her assailant. DPS officers responded immediately and investigated the

incident. Thereafter, SEMO moved Huerta into a different dormitory on the other side of
campus. Plaintiff asserts that had she known Huerta was her assailant, she could have tracked
him and found ways to avoid the places he was likely to be on campus. Without this information,
Plaintiff asserts she was constantly fearful of running into Huerta on campus.
SEMO asserts that it thoroughly investigated Plaintiff’s assault, made sure Plaintiff and
Huerta had no classes in common, and arranged for counseling services for Plaintiff. SEMO
restricted Huerta’s conduct by issuing no-contact orders to Huerta immediately after he was
determined to be the perpetrator and moved him to a different dorm complex. Following its
investigation, a charge letter was issued to Huerta in November 2016. SEMO argues these
actions do not evidence deliberate indifference.

When Plaintiff was informed of Huerta’s identity is a disputed fact issue. Defendants
maintain that Plaintiff would have been told Huerta’s name after he signed the No-Contact Letter

11
during a meeting either on September 15, 2016 or October 25, 2016. Plaintiff on the other hand

recalls asking for the name of the perpetrator and being told she was not allowed to know it. She
does not remember meeting Fraser-Smith on those dates and asserts that it was not until her
meeting with Trae Mitten in the fall of 2019, some three years after her assault, that she was
finally told Huerta’s name. Even assuming SEMO withheld Huerta’s name from Plaintiff, the
record evidence fails to support a finding that this exposed Plaintiff to additional sexual
harassment so severe, pervasive, and offensive that it deprived her of equal access to the
educational benefits and opportunities provided by SEMO.
A student’s depression and fear of encountering the assailant on campus, without more, is
insufficient to show actionable harassment. See Dardanelle, 928 F.3d at 727 (student victim’s

academic performance improved after harassment and facts did not indicate any negative
interaction with harasser after initial harassment occurred); see also Culver-Stockton Coll., 865
F.3d at 1058 (dismissing the plaintiff’s deliberate indifference claim because “[a]t most,
[plaintiff] link[s] the [defendant’s] inaction with emotional trauma [plaintiff] claims she
experienced following the assault”); Garrett v. University of South Florida Bd. of Trustees, 448
F. Supp. 3d 1286, 1299 (M.D. Fla. 2020) (“[T]he mere prospect of the alleged assailant’s
entering the victim’s range of perception makes the plaintiff liable or vulnerable to harassment
only if the university fails to restrict the conduct of an alleged assailant after the sexual
misconduct.”). To be actionable, the harassment must have “a systemic effect” of denying the
student victim equal access to education. Davis, 526 U.S. at 652. While “[i]n theory, a single

instance of sufficiently severe one-on-one peer harassment could be said to have such an effect,”

7 However, Randy Carter acknowledged there is no written documentation that the letter was shared with
Plaintiff. (Doc. No. 46-3 at 32).
12
id. at 652-53. Moreover, Eighth Circuit courts have found a single instance of harassment

insufficient to impose Title IX liability. See Culver-Stockton Coll., 865 F.3d at 1057; Doe T.L.J.
v. Univ. of Central Mo., Case No. 4:20-00714-CV-RK, 2020 WL 7700101 at *3 (W.D. Mo. Dec.
28, 2020).
The Court acknowledges that under certain circumstances, the fear of future encounters
between a rape victim and his or her assailant could create an environment sufficiently hostile to
deprive the victim of access to educational opportunities. See Fryberger v. Univ. of Ark., No.
5:16-cv-5224, 2019 WL 6119253, at *10 (W.D. Ark. Nov. 18, 2019). However, a victim’s
alleged general fear of running into her assailant must be objectively reasonable. Id. at *9 (citing
Farmer v. Kansas State University, 918 F.3d 1094, 1104 (10th Cir. 2019)); see also Davis, 526

U.S. at 633. In Farmer for example, plaintiffs alleged their fears “forced them to take very
specific actions that deprived them of the educational opportunities offered to other students,”
such as withdrawing from activities the university offered its students and avoiding going
anywhere on campus without being accompanied by friends. 918 F.3d at 1105.8
Unlike the plaintiffs in Farmer, Plaintiff does not contend she was forced to take specific
action that deprived her of educational opportunities offered to other students. She continued to
live on campus and except for the sighting in the cafeteria, had no contact with Huerta and does
not claim she was harassed by him after that. She did not withdraw from any extracurricular
activities or change her academic schedule, since she and Huerta had no common classes.
Moreover, Plaintiff was notified that Huerta withdrew from SEMO in November of 2016.

8 The Farmer court cautioned that future courts “will undoubtedly be asked to draw lines on when a
victim’s fear of further sexual harassment is sufficient to deprive that student of educational
opportunities” but expressed “no hesitation” in its present holding because the motion before the court
was “a motion to dismiss, where all inferences are drawn in favor of Plaintiffs.” Id. at 1105.
13
that SEMO made her more vulnerable to post-assault harassment by withholding Huerta’s name

from her. But Plaintiff offers no evidence that would allow the Court to conclude that knowing
Huerta’s name would have alleviated her concerns about running into him on campus. Under
governing precedent, a Title IX plaintiff must demonstrate a “causal nexus” between the
college’s conduct and the student’s experience of sexual harassment. The Court is in no way
minimizing the obvious trauma Plaintiff experienced; however, linking SEMO’s actions or
inactions to her fear of future encounters with Huerta is not enough. Carleton Coll., 993 F.3d at
576; Culver-Stockton Coll., 865 F.3d at 1058. For these reasons, Plaintiff’s motion for summary
judgment on Count I will be denied and SEMO’s motion will be granted.
Count II

In Count II, Plaintiff alleges SEMO was deliberately indifferent to her sexual assault by
failing to inform her of her rights under Title IX, failing to provide her with educational
accommodations, and failing to protect her from retaliation. She argues it took SEMO three
months to issue a charge in her case and that during that time, the student conduct process was
skewed in favor of Huerta. Plaintiff contends that Huerta was automatically entitled to
“reasonable accommodations” to maintain his academic work, whereas she was required to
prove a disability sufficient to warrant similar accommodations. Plaintiff also notes that SEMO’s
Title IX Coordinator’s only involvement in her case was to issue a charge letter and not to assist
her with her Title IX rights. SEMO asserts that its policies and programs, including the My
Student Body and First STEP programs and SE 101 orientation course, evidence its commitment

to informing all its students about sexual harassment, sexual assault, and their rights under Title
IX and that it provided Plaintiff with educational accommodations.

14
(“OCR”) issued in 2011 (“2011 Dear Colleague Letter”) which requires a school to “take

immediate action to eliminate [student-on-student] harassment [that creates a hostile
environment], prevent its recurrence, and address its effects.” OCR guidance further requires
schools designate “at least one employee to coordinate its efforts to comply with and carry out its
responsibilities under Title IX;” “adopt and publish grievance procedures providing for prompt
and equitable resolution of student and employee sex discrimination complaints;” and “notify the
complainant of his or her options to avoid contact with the alleged perpetrator and allow student
to change academic or living situations as appropriate.”
SEMO’s alleged failure to comply with the Letter’s guidance, however, does not
establish the requisite actual notice and deliberate indifference. As the Eighth Circuit and other

courts have noted, failure to follow Title IX’s administrative regulations is not a sufficiently
severe form of discrimination to give rise to a deliberate indifference claim. Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 292 (1998) (A university’s failure to promulgate a
grievance procedure that complies with Title IX “does not itself constitute ‘discrimination’ under
Title IX.”); Rossley v. Drake Univ., 342 F. Supp. 3d 904, 931 (S.D. Iowa 2018), aff’d, 979 F.3d
1184 (8th Cir. 2020) (citing cases); Carleton Coll., 2019 WL 3974091, at *13 (“the DCL does
not define what amounts to deliberate indifference”); St. Louis Univ., 746 F.3d at 883-84
(noninvolvement of the University’s Title IX coordinator was not shown to be evidence of
deliberate indifference); Doe ex rel. Doe v. Saint Paul Conservatory for the Performing Arts, No.
17-5032 (DWF/FLN), 2018 WL 2431849, at *3 (D. Minn. May 30, 2018) (determining the

plaintiff had failed to state a claim for relief for deliberate indifference based on the school’s
violations of Title IX regulations); Doe v. St. John’s Univ., No. CV 17-2413 (PAM/LIB), 2017

15
Minnesota, No. 17-3528, 2018 WL 2324285 (8th Cir. Jan. 9, 2018).

It is undisputed that SEMO investigated Plaintiff’s reported assault, issued a no-contact
order against Huerta, and arranged counseling services for Plaintiff. As for accommodations,
SEMO distinguishes between educational accommodations specifically related to classes (such
as changing schedules or restricting Huerta from a particular building) from “official”
accommodations (such as extra time on exams, time away from school, recorded lectures). Both
Sonia Rucker, SEMO’s Title IX Coordinator, and Randy Carter, SEMO’s Dean of Students,
testified that class-related accommodations are arranged through the Office of Student Conduct,
whereas official accommodations for mental health issues, trauma, stress, or PTSD, are arranged
through Counseling and Disability Services and require a documented disability. According to

Carter, the definition of an official accommodation could have been expanded at the request of
Plaintiff and her counselor to include sexual assault. (Doc. No. 46-3 at 26-29).
SEMO’s Title IX policy provided that the complainant has the right to notification of
options for, and available assistance in changing academic and living situations after an alleged
sexual assault incident, if the victim so chooses and if such changes are reasonably available.
Here, Plaintiff’s education was not interrupted. She was not asked to change schedules since she
and Huerta had no common classes. Following Plaintiff’s hospitalization during her junior year,
SEMO worked with Plaintiff and her teachers to ensure she was able to complete her
coursework. When Plaintiff returned home in her senior year, SEMO again assisted her with the
classes she needed to graduate on time. That Plaintiff believed SEMO should have done more is

insufficient to create a triable issue as to whether SEMO was deliberately indifferent to her
complaint. “Victims of peer harassment do not have a Title IX right to make particular remedial

16
1210, 1213 (8th Cir. 2019)).

As for any delay in issuing a charge in her case, SEMO points out that when Plaintiff was
informed of Huerta’s identity (at the latest October 25, 2016), the student conduct process was
ongoing, and Plaintiff only decided to proceed with the hearing process on October 14, 2016.
SEMO’s guidelines state that the goal is to complete the process within 30 to 60 working days,
while recognizing that delays may occur. (Doc. No. 42-19 at 11). In interpreting the timing
requirements for a Title IX investigation based on the statute itself, courts have repeatedly held
that delay may indicate deliberate indifference only when it is “lengthy and unjustified.” Tubbs
v. Stony Brook Univ., 343 F. Supp. 3d 292, 311 (S.D.N.Y. 2018) (quoting Hayut v. State Univ.
of New York, 352 F.3d 733 (2d Cir. 2003) (no lengthy and unjustified delay in a teacher-on-

student harassment case, where the harassing conduct occurred in Fall 1998, the student
submitted a written complaint several months later in February 1999, and the harasser resigned
in March of 1999) (citing Bruneau v. South Kortright Cent. Sch. Dist., 163 F.3d 749, 761 (2d
Cir. 1998)); KF ex rel. CF v. Monroe Woodbury Cent. Sch. Dist., 531 F. App'x 132, 134 (2d Cir.
2013) (“There is no charge here ... that the school unreasonably delayed its response or failed to
prevent future harassment.”). See also Oden v. N. Marianas Coll., 440 F.3d 1085 (9th Cir. 2006)
(finding that college was not deliberately indifferent to alleged harassment, even though it failed
to hold a hearing until following school year, in violation of its own policy because “[t]he
College began to act as soon as it became aware of Plaintiff's allegations” and “the record failed
to demonstrate that the delay was more than negligent lazy or careless.”). Compare Davis, 526

U.S. at 633-34 (school could be liable for deliberate indifference when the harassment was part
of a “prolonged pattern,” which the school knew about for months due to complaints from

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plaintiff’s grades suffered and she contemplated suicide).

Plaintiff complains of harassment and bullying by her sorority sisters for going home for
a day during recruitment. Assuming without deciding that this harassment was based on
Plaintiff’s sex and also sufficiently severe, the Court concludes as a matter of law that SEMO’s
response was not clearly unreasonable. Plaintiff raised the bullying issue with Trae Mitten.
Plaintiff acknowledged that while Mitten helped address the bullying issue, she moved back
home for the second semester of her senior year. It is undisputed that Mitten then worked with
Plaintiff to get her into the classes she needed to graduate. Title IX does not require more.
Hughes, 2021 WL 2042264, at *11.
As further evidence of SEMO’s deliberate indifference, Plaintiff contends that after she

retained counsel to represent her in this lawsuit, SEMO ceased all communication with her in
retaliation for exercising her civil rights. (Doc. No. 30 at ¶ 47). SEMO responds that it acted
upon notice of Plaintiff’s attorney and at the direction of SEMO’s legal counsel. “Following
advice of counsel that at least arguably comports with school policy cannot be deemed deliberate
indifference or clearly unreasonable conduct” by SEMO. Ross v. Univ. of Tulsa, 180 F. Supp. 3d
951, 972 (N.D. Okla. 2016), aff’d, 859 F.3d 1280 (10th Cir. 2017) (citing Doe on Behalf of Doe
v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998) (“Actions and decisions by
officials that are merely inept, erroneous, ineffective, or negligent do not amount to deliberate
indifference....”)). “The civil liability standard outlined by the Supreme Court [in Gebser, 524
U.S. at 290-91] does not require universities to behave perfectly or even very well. It requires

universities to respond to reports of peer-on-peer sexual violence in a manner that is not clearly
unreasonable or deliberately indifferent.” Ross, 180 F. Supp. 3d at 972.

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is sympathetic to her circumstances. However, a reasonable jury could not find, based on the

undisputed facts, that SEMO’s response was clearly unreasonable. Thus, Plaintiff’s motion for
summary judgment on Count II will be denied and SEMO’s motion will be granted.
Count IV
In Count IV, Plaintiff alleges SEMO’s policies and process for addressing sexual
harassment or violence on campus are discriminatory because they focus solely on the male
perpetrator and his rights to the detriment of the female complainant and her rights. Plaintiff
notes that SEMO officials met with Huerta to advise him of his rights the day after the assault,
whereas no one met with her for at least two weeks following the assault. Even then, Plaintiff
met with an investigator from the Student Conduct Office and not SEMO’s Title IX coordinator.

Plaintiff was not offered any options related to new housing, but Huerta was given the option to
move. Huerta knew Plaintiff’s identity; she was not permitted to know his. Plaintiff contends she
was required to prove a disability to receive academic assistance/accommodations while Huerta
automatically received academic support and accommodations.
SEMO asserts that a university’s sexual misconduct disciplinary procedure must protect
the interests of a student victim of sexual assault as well as the rights of the student accused of
the assault. SEMO further asserts that Plaintiff was in fact provided with educational
accommodations. It is undisputed that during those times Plaintiff was home during her junior
and senior years, SEMO worked with Plaintiff and her teachers to ensure that she was able to
complete her coursework and graduate on time.

Although Plaintiff takes issue with SEMO’s investigation and disciplinary process, she
has not come forward with any specific statements, conduct, or a pattern of decision-making
suggestive of gender bias at SEMO. See St. John’s Univ., 2017 WL 4863066, at *3. “[M]ere
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sufficient for Title IX.” Stenzel v. Peterson, No. 17-580 (JRT/LIB), 2017 WL 4081897, at *5 (D.

Minn. Sept. 13, 2017). Nor can SEMO’s compliance with its own procedure establish any gender
bias whatsoever. St. John’s Univ., 2017 WL 4863066, at *3.
When it exists, bias certainly provides some indication that a university failed to use
reasonable care in conducting its investigation. However, university “administrators are ‘entitled
to a presumption of honesty and integrity unless actual bias … can be proven.’ ” Richmond v.
Fowlkes, 228 F.3d 854, 858 (8th Cir. 2000) (quoting Ikpeazu v. Univ. of Nebraska, 775 F.2d
250, 254 (8th Cir. 1985)). Where a plaintiff relies only on his or her belief that administrators
acted with bias, the presumption is not overcome. Doe v. Univ. of St. Thomas, 368 F. Supp. 3d
1309, 1320 (D. Minn. 2019), aff’d but criticized, 972 F.3d 1014 (8th Cir. 2020) (citing de Llano

v. Berglund, 282 F.3d 1031, 1035 (8th Cir. 2002)).
Because Plaintiff has offered no evidence to establish an issue of material fact as to
whether SEMO’s differential treatment of Plaintiff and Huerta, if any existed, was motivated by
discriminatory intent, her motion for summary judgment on Count IV will be denied and
SEMO’s motion will be granted.
C. § 1983 claim against SEMO and Dirnberger in her official capacity
In Count III of her complaint, Plaintiff asserts a claim for violation of her right to
personal security, bodily integrity, and equal protection pursuant to 42 U.S.C. § 1983 against
SEMO and DPS Officer Dirnberger in her individual and official capacities. Plaintiff alleges
SEMO and Dirnberger failed to reveal the name of her rapist; actively concealed his identity so

that she could not seek civil protection or criminal or civil justice; failed to investigate his
misconduct; failed to appropriately discipline him; failed to adequately inform her of her rights
in terms of seeking safety measures from the school and the justice system; actively prevented
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assault and ongoing harassment. (AC at ¶ 74). SEMO generally reasserts its Title IX arguments

in its motion for summary judgment on Plaintiff’s § 1983 claim, i.e., that Plaintiff cannot show
deliberate indifference, and argue that Officer Dirnberger is entitled to qualified immunity on the
individual claim against her.
Plaintiff’s claim is barred as against SEMO itself. A § 1983 action seeking damages may
only be asserted against a “person” acting under color of state law. A State is not such a
“person.” Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). A State also has
sovereign immunity, or “Eleventh Amendment immunity,” subject to certain exceptions that are
not applicable here.9 See, e.g., Edelman v. Jordan, 415 U.S. 651, 663 (1974).
Most federal courts, including the Eighth Circuit, have held that state colleges and

universities, as well as the boards that govern them, are “agencies or instrumentalities” of the
state, and thus immune from suit in federal court. See, e.g., Becker v. Univ. of Nebraska at
Omaha, 191 F.3d 904, 908 (8th Cir. 1999); Murphy v. State of Ark., 127 F.3d 750, 754 (8th Cir.
1997); Treleven v. Univ. of Minnesota, 73 F.3d 816, 819 (8th Cir. 1996) (citing Greenwood v.
Ross, 778 F.2d 448, 453 (8th Cir. 1985); Walls v. Bd. of Regents of Se. Missouri State Univ.,
No. 1:09CV35RWS, 2009 WL 2170176, at *2 (E.D. Mo. July 20, 2009) (citing cases). It is also
well established that § 1983 claims for damages against a state official in his or her official
capacity are equivalent to claims against the State and therefore barred by the same principles.
See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989); McKay v. City of St. Louis,

9 There are two “well-established exceptions” to the sovereign immunity provided by the Eleventh
Amendment. Barnes v. State of Missouri, 960 F.2d 63, 64 (8th Cir. 1992). “The first exception to
Eleventh Amendment immunity is where Congress has statutorily abrogated such immunity by clear and
unmistakable language.” Id. The second exception is when a state waives its immunity to suit in federal
court. Id. at 65. Neither exception is applicable in this case.

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summary judgment will be granted on this point and Plaintiff’s § 1983 claims against SEMO and

Officer Dirnberger in her official capacity are dismissed with prejudice.
D. § 1983 claim against Dirnberger in her individual capacity
To hold Officer Dirnberger personally liable under § 1983, Plaintiff must show that the
conduct complained of was performed under color of state law and deprived her of rights,
privileges, or immunities secured by the Constitution or federal law. See Kinman v. Omaha Pub.
Sch. Dist., 171 F.3d 607, 611 (8th Cir. 1999) (citation omitted). Plaintiff has alleged that Officer
Dirnberger deprived her of her constitutional right to personal security, bodily integrity, and
equal protection by displaying deliberate indifference to her assault and ongoing harassment,
specifically by failing to reveal the name of her rapist; failing to investigate his misconduct;

failing to appropriately discipline him; and failing to adequately inform her of her rights in terms
of seeking safety measures from the school and the justice system.10
Defendants first argue that Officer Dirnberger’s actions do not amount to deliberate
indifference towards Plaintiff. Officer Dirnberger was first to respond to Plaintiff’s call to DPS.
She began the investigation of the circumstances surrounding the assault and took Plaintiff to the
hospital. Officer Dirnberger asked Plaintiff if she wanted to press charges and Plaintiff indicated
that she did not. There is no evidence suggesting Officer Dirnberger was involved with the
decision to submit charges to the Cape Girardeau Prosecuting Attorney. Officer Dirnberger
ended her shift on the morning of August 28, 2016 and turned the investigation over to DPS. It is
undisputed that Officer Dirnberger did not tell Plaintiff the name of the suspect, as she did not

10 Plaintiff also asserts Dirnberger interfered with her right under the Missouri Constitution to information
about the crime committed against her. Pursuant to Article 1, Section 32 of the Missouri State
Constitution, crime victims are guaranteed certain notification rights and participation in the criminal
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day on August 28, 2016. It is further undisputed that Officer Dirnberger had no further contact or

communication with Plaintiff after she was discharged from the hospital. Plaintiff could not say
what Officer Dirnberger could have done to further the investigation into Huerta’s misconduct or
how a campus police officer as opposed to an educator could have provided her with educational
accommodations. (Doc. No. 46-2 at 23-24). Plaintiff had no information as to whether Officer
Dirnberger had the authority to remove Huerta from campus. (Id. at 27-29).
The Supreme Court has held that deliberate indifference must be exhibited by “an official
of the recipient entity with authority to take corrective action to end the discrimination.” Shank,
2019 WL 3974091, at *10 (quoting Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290
(1998)). Nothing in the record before the Court shows that a DPS Officer by virtue of her

position might have possessed authority to discipline a student assailant or to inform a victim of
her rights under Title IX. Indeed, courts have found the role of campus security officers legally
insufficient to give them authority to take corrective action under Title IX. Shank, 2019 WL
3974091, at *10 (citing Ross v. Univ. of Tulsa, 859 F.3d 1280, 1292 (10th Cir. 2017)). A
reasonable jury could not find, based on the undisputed facts, that Officer Dirnberger’s response
to Plaintiff’s sexual assault was clearly unreasonable under the known circumstances.
Alternatively, Defendants argue that Officer Dirnberger is entitled to summary judgment
on the basis of qualified immunity. “At the summary judgment stage, a defendant is entitled to
qualified immunity unless (1) the facts, viewed in the light most favorable to the plaintiff,
demonstrate the deprivation of a constitutional statutory right; and (2) the right was clearly

established at the time of the deprivation.” Howard v. Kan. City Police Dep’t, 570 F.3d 984, 988

justice system in Missouri. SEMO’s student conduct process, however, is separate from a criminal
proceeding, and the Prosecuting Attorney for Cape Girardeau County declined to prosecute.
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establishing ‘the relevant predicate facts, and at the summary judgment stage, the nonmoving

party is given the benefit of all reasonable inferences.’ ” McGuire v. Cooper, 952 F.3d 918, 922
(8th Cir. 2020) (quoting White v. McKinley, 519 F.3d 806, 813 (8th Cir. 2008)).
Plaintiff has failed to set out any clearly established constitutional right violated by
Officer Dirnberger. Although Plaintiff has a right under the Fourteenth Amendment to protection
of her liberty interest in her personal privacy and bodily integrity, see Doe A v. Special School
Dist. of St. Louis County, 637 F. Supp. 1138, 1144 (8th Cir. 1986), there is no evidence that any
actions by Officer Dirnberger violated this right. The concept of a constitutional right to bodily
integrity is the right to be free from “unauthorized and unlawful physical abuse” at the hands of
the state by a state official acting or claiming to act under the color of the law, when the alleged

conduct is of such a nature as to be “shocking to one’s consci[ence].” Doe v. Univ. of Alabama
in Huntsville, 177 F. Supp. 3d 1380, 1397 (N.D. Ala. 2016) (quoting United States v. Lanier, 520
U.S. 259, 262 (1997)). The assault on Plaintiff was carried out by a private actor, Huerta, not a
state official or one acting under color of state law. By the time Plaintiff made a report, the
assault had already occurred, and there is no evidence suggesting that SEMO or Officer
Dirnberger was on notice, prior to the assault, that it might occur. Officer Dirnberger is,
therefore, entitled to summary judgment based on qualified immunity because Plaintiff has not
demonstrated that any clearly established constitutional right has been violated, and because
Plaintiff cannot show that Officer Dirnberger actions were objectively unreasonable.
V. Conclusion

As previously stated, Plaintiff suffered what no student should have to experience in
college and the Court is certainly sympathetic to her situation. SEMO could have handled certain
aspects of its investigation into Plaintiff’s assault differently, including informing her of her
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perpetrator’s name in a more timely and verifiable manner. That said, the law sets a high bar
when it requires Title IX plaintiffs to show that an educational institution was deliberately
indifferent in its response to rape, other forms of sexual assault, or sexual harassment. The
inquiry is not whether the university could have done better; it is whether the university
responded in a manner that is not clearly unreasonable or deliberately indifferent. Davis, 526
U.S. at 648; Dardanelle School Dist., 928 F.3d at 725. For the reasons discussed herein, no
reasonable juror could conclude that Defendants’ response to Plaintiffs sexual assault was
deliberately indifferent in light of the known circumstances.
Accordingly,
IT IS HEREBY ORDERED that Plaintiff's Motion for Summary Judgment [40] is
DENIED.
IT IS FUTHER ORDERED that Defendants’ Motion for Summary Judgment [44] is
GRANTED.
A separate Judgment accompanies this Memorandum and Order.

Dated this Sth day of May, 2022.

Gare
ITED STATES DISTRICT JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10236986. Public record. Not legal advice.