Doe 2 v. North Carolina State University

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NORTH CAROLINA

WESTERN DIVISION

NO. 5:23-CV-216-FL

JOHN DOE 2, )

)

Plaintiff, )

)

v. )

ORDER

)

NORTH CAROLINA STATE )

UNIVERSITY, )

)

Defendant. )

This matter comes before the court on defendant’s motion to dismiss for failure to state a

claim (DE 13). Also pending is plaintiff’s motion for leave to proceed anonymously (DE 5). The

issues raised are ripe for ruling. For the following reasons, defendant’s motion is granted and

plaintiff’s motion is terminated as moot.

STATEMENT OF THE CASE

Plaintiff, proceeding anonymously, commenced this action by complaint filed April 21,

2023, asserting claims for violation of Title IX of the Education Amendments of 1972, 20 U.S.C.

§§ 1681, et seq., arising from alleged sexual abuse by defendant’s former director of sports

medicine, Robert M. Murphy, Jr., (“Murphy”). That same day, plaintiff filed a motion for leave

to proceed anonymously. On April 26, 2023, the case was reassigned to the undersigned.1

1 Related cases Locke v. North Carolina State University, 5:22-cv-344, and Doe v. North Carolina State

University, 5:23-cv-044, also are pending before the undersigned.

Defendant filed the instant motion to dismiss on May 26, 2023, plaintiff responded, and

defendant replied. Defendant also responded in opposition to plaintiff’s motion to proceed

anonymously. In this posture, the issues raised are ripe for ruling.

STATEMENT OF FACTS

The relevant facts are alleged in the complaint2 as follows. Plaintiff was a male student-

athlete enrolled at defendant North Carolina State University (NCSU) in 2020 and 2021, during

Murphy’s tenure as defendant’s former director of sports medicine. (Compl. ¶ 18). In early 2021,

plaintiff experienced hip and groin pain. (Id. ¶ 27). On two occasions, under the guise of treating

plaintiff’s pain, Murphy allegedly directed plaintiff to remove his compression shorts or underwear

such that he was only wearing loose practice shorts, directed plaintiff to lie down on a training

table, massaged and touched plaintiff’s genitals with bare hands and without plaintiff’s consent,

all without medical need. (Id. ¶¶ 30-48).

Sometime thereafter, Benjamin Locke, plaintiff in a related case before this court, reported

Murphy’s abuse to defendant. A subsequent investigation by defendant allegedly found that before

2016, NCSU head soccer coach Kelly Findley (“Findley”) “came to believe that Murphy was

engaging in what he suspected was sexual grooming of male athletes.” (Id. ¶ 55(a)). In early

2016, Findley allegedly told senior associate athletic director Sherard Clinkscales (“Clinkscales”),

that “Murphy was engaging in what he suspected was sexual grooming of male student-athletes.”

(Id. ¶ 55(b)). Additionally, the complaint alleges that prior to 2016, Findley, NCSU assistant coach

David Costa (“Costa”), and NCSU assistant coach Steven Cox (“Cox”) “had been aware of

Murphy’s reportable sexual conduct . . . had discussed it amongst themselves, and had not

immediately reported it to Title IX staff as required by NCSU policy.” (Id. ¶ 58).

2 Only the complaint in the instant case, and not in related cases, is considered.

On August 1, 2017, “Murphy was removed as the designated athletic trainer for certain

men’s teams” and his duties were changed to be of a more administrative nature. (Id. ¶¶ 55(c)-

(d)). In 2018, Murphy “was promoted to Associate Athletic Director and given a raise.” (Id. ¶

66(e)). Between 2019 and 2021, Murphy “conducted drug testing for male student athletes,” and

under the guise of drug testing Murphy directed athletes “to turn in a 360-degree circle” while

“directly observing their bare genitals.” (Id. ¶ 55(l)). Murphy is no longer an employee of

defendant. (See id. ¶ 57(a)).

COURT’S DISCUSSION

1. Standard of Review

“To survive a motion to dismiss” under Rule 12(b)(6), “a complaint must contain sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“Factual allegations must be enough to raise a right to relief above the speculative level.”

Twombly, 550 U.S. at 555. In evaluating whether a claim is stated, “[the] court accepts all well-

pled facts as true and construes these facts in the light most favorable to the plaintiff,” but does

not consider “legal conclusions, elements of a cause of action, . . . bare assertions devoid of further

factual enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.”

Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009)3

2. Analysis

Defendant NCSU argues that plaintiff’s Title IX claim fails for failure to allege facts that,

if true, would support an inference that it received actual notice of the alleged abuse. The court

3 Internal citations and quotation marks are omitted from all citations unless otherwise specified.

agrees. Where lack of notice is dispositive, the court does not address NCSU’s argument that the

claim is barred by the statute of limitations.

Title IX, which imposes liability on certain educational institutions in cases involving

employees’ sexual harassment of students, is “enforceable through an implied private right of

action.” Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 281 (1998). Under Fourth

Circuit precedent,

to establish a Title IX claim on the basis of sexual harassment, a plaintiff must show that

1) [he] was a student at an educational institution receiving federal funds, 2) [he] was

subjected to harassment based on [his] sex, (3) the harassment was sufficiently severe or

pervasive to create a hostile (or abusive) environment in an educational program or activity,

and (4) there is a basis for imputing liability to the institution.

Jennings v. University of North Carolina, 482 F.3d 686, 695 (4th Cir. 2007) (en banc). Only the

fourth element, whether there is a basis for holding defendant liable, is at issue in this case.

An educational institution may be liable for sexual harassment of its students by an

employee only if “an official of the school . . . who at a minimum has authority to institute

corrective measures on the [school’s] behalf has actual notice of, and is deliberately indifferent to,

the [employee’s] misconduct.” Gebser, 524 U.S. at 277. Actual notice is established for Title IX

purposes when “a school official with authority to address complaints of sexual harassment and to

institute corrective measures receives a report that can objectively be construed as alleging sexual

harassment.” Doe v. Fairfax County School Board, 1 F.4th 257, 262 (4th Cir. 2021). The

institution must be “aware of an allegation that [an employee is] currently abusing a student[,]

although the school [does] not need to know the identity of the student allegedly being abused.”

Id. at 265 (emphasis removed). Mere “allegations supporting a general, substantial risk of – or the

potential for – ongoing or future misconduct by” an employee does not constitute sufficient notice

for Title IX purposes. Id. (emphasis removed).

The United States Court of Appeals for the Fourth Circuit has found actual notice or lack

thereof in several Title IX cases. For example, it found that a university had actual notice of sexual

harassment by a soccer coach when the victim of harassment met with a university’s “highest

ranking lawyer,” offering “vivid details” of the harassment and describing “intense feelings of

discomfort and humiliation.” Jennings, 482 F.3d at 700. Actual notice likewise has been found

when school officials received a written and oral report from a student that she had been

inappropriately touched on a school trip without her consent, confirmation from the alleged

harasser, and multiple reports from students and parents. See Fairfax County School Board, 1

F.4th at 262; see also Doe by next friend Pullen-Smith v. Qually, No. 5:20-cv-523, 2021 WL

2546456, at *7 (E.D.N.C. 2021) (finding actual knowledge in a case of alleged sexual harassment

by a student where the plaintiff notified her principal). Conversely, no notice was found in a case

in which a former student informed a school principal that an alleged harasser was “a pedophile,”

a librarian reported inappropriate physical contact between that teacher and a student to the

principal, and a teacher reported a tip from a neighbor that the alleged harasser “abused children.”

Baynard v. Malone, 268 F.3d 228, 234 (4th Cir. 2001).

The complaint does not allege facts permitting an inference that defendant had actual notice

of alleged abuse by Murphy. According to the complaint, “prior to 2016,” head soccer coach

Findley and assistant coaches Costa and Cox “had been aware of Murphy’s reportable sexual

conduct towards student-athletes . . . , had discussed it amongst themselves, and had not

immediately reported it to Title IX staff.” (Compl. ¶ 58). The complaint does not allege that the

coaches possessed the authority to take corrective measures, and, other than the conversation

discussed below, they do not appear to have reported Murphy’s conduct to an official invested

with such authority. Therefore, the requisite notice cannot be inferred on the basis of Findley,

Costa, and Cox’s alleged conduct.

The complaint also alleges that “[i]n early 2016, Findley told Senior Associate Athletic

Director . . . Clinkscales,4 that Murphy was engaging in what he suspected was sexual grooming

of male student athletes.” (Id. ¶ 55(b)). Faithful application of Fourth Circuit precedent precludes

an inference of actual notice merely on the basis of allegedly suspected conduct. See, e.g., Fairfax

Cnty. Sch. Bd., 1 F.4th at 268 (rejecting contention that “a school acquires actual notice whenever

a faculty member simply overhears gossip or a rumor concerning sexual harassment”). In this

respect it is insufficient if an alleged report only gives rise to an inference of a “substantial risk . .

. of ongoing or future misconduct.” Id. at 265. Without an allegation of “an incident” of sexual

harassment, id. at 267, Findley’s communication of “what he suspected was sexual grooming”

does not support a plausible inference of actual notice to defendant.5

Plaintiff asserts that “it is overwhelmingly likely that the coaches” used the euphemistic

language of “grooming behavior” “out of embarrassment and reticence in formal settings.” (DE

16 at 12). According to plaintiff, the coaches “surely must have known, and communicated, more

particulars, if they were impelled to report the problem to Clinkscales.” (Id.). These statements

are speculations, not “factual matter,” Twombly, 550 U.S. at 556, and the court is not bound to

accept plaintiff’s hypotheses about what the coaches “must have” known or communicated. (DE

16 at 12).

4 For purposes of this order, the court assumes without deciding that Clinkscales was “an official who has the

authority to address the alleged discrimination and to institute corrective measures.” Jennings, 482 F.3d 686.

5 Plaintiff’s contention in his brief that three members of defendant’s coaching staff and defendant’s associate

athletic director were aware “that Murphy was strongly suspected to be a sexual predator,” (DE 33 at 15), similarly

fails to align with the Title IX notice requirement.

Plaintiff suggests that Murphy’s reassignment to an administrative role in August 2017

gives rise to an inference of actual notice. However, such a reassignment is “merely consistent

with,” and does not “plausibly suggest[],” a violation of Title IX. Twombly, 550 U.S. at 557. The

reassignment occurred over a year after Findley reported his suspicions to Clinkscales, (see compl.

¶ 66(c)), and in any event, the court has found no precedent to support the proposition that

reassignment supports a finding of actual knowledge in the Title IX context.

Plaintiff argues that “the coaches’ failure to report to an . . . official with sufficient authority

to address the discrimination was a violation of NCSU policy . . . amount[ing] to willful

blindness.” (DE 16 at 9). Violations of university policy, however, are not allegations supporting

a finding of actual notice. Indeed, the coaches’ alleged “failure to . . . report[] to the Title IX

[c]oordinator as required” undermines plaintiff’s claim that responsible parties knew about the

abuse. (Id.; see also id. at 13) (“Had any of the coaches or Clinkscales reported their suspicions

of inappropriate conduct to the Title IX office, NCSU employees . . . would have had an

opportunity to respond appropriately.”).

Additionally, plaintiff’s reliance on Mercer v. Duke University, which held that the “source

of the information [regarding abuse] is immaterial,” is misplaced. 181 F. Supp. 2d 525, 540

(M.D.N.C. 2001) (overruled on other grounds). No part of this court’s decision relies on the source

of the information conveyed to defendant, rather, it is the substance, particularly the absence of

any alleged incident of harassment, that is at issue here. In Mercer, both the university’s president

and its athletic director admitted at trial “that they were actually aware of [p]laintiff’s claim” of

discriminatory treatment. Id. Snyder-Hill v. Ohio State University, on which plaintiff also relies,

is instructively distinguishable where “many students complained to [the defendant university]

about [a team physician’s] abuse,” health center staff “were . . . aware of and received many

complaints about [the physician’s] examinations of male students,” including a detailed report by

a student wrestler, and “the head team physician had received at least five written reports about

[the team physician’s] misconduct.” 48 F.4th 686, 691-92 (6th Cir. 2022).

In sum, plaintiff has failed adequately to state a claim for violation of Title IX based on the

facts in his complaint. Accordingly, the court grants defendant’s motion to dismiss plaintiff's

claims and dismisses the case without prejudice.

CONCLUSION

Based on the foregoing, defendant’s motion to dismiss (DE 13) is GRANTED. Plaintiffs

claim is DISMISSED for failure to state a claim upon which relief can be granted. Plaintiff’s

motion for leave to proceed anonymously (DE 5) is TERMINATED AS MOOT. The clerk is

directed to close this case.

SO ORDERED, this the 11th day of September, 2023.

LOUISE W. FLANAGAN

United States District Judge