The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
STATESVILLE DIVISION
CIVIL ACTION NO. 5:22-CV-00144-KDB-DSC
JOHN DOE,
Plaintiff,
v. ORDER
WILKES COUNTY SCHOOLS
BOARD OF EDUCATION,
Defendant.
THIS MATTER is before the Court on Defendant Wilkes County Schools Board of
Education’s (“School Board”) Motion to Dismiss (Doc. No. 6), the Memorandum and
Recommendation of the Honorable Magistrate Judge David S. Cayer (“M&R”) filed January 19,
2023 (Doc. No. 11) and the School Board’s Objection to the M&R (Doc. No. 12). The Court has
carefully considered the motion and objection, the M&R, and the parties’ briefs and other
pleadings of record. As discussed below, the Court concludes after its de novo review that the
recommendations in the M&R to grant the motion as to Plaintiff’s claims under 42 U.S.C. §1983
but decline to dismiss Plaintiff’s claims under Title IX, 20 U.S.C. §1681, are correct and in
accordance with law. Therefore, the findings and conclusions of the Magistrate Judge will be
affirmed and adopted and the motion will be resolved as recommended.
I. LEGAL STANDARD
A district court may designate a magistrate judge to “submit to a judge of the court
proposed findings of fact and recommendations for the disposition” of certain pretrial matters,
including motions to dismiss. 28 U.S.C. § 636(b)(1). Any party may object to the magistrate
judge’s proposed findings and recommendations, and the court “shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” 28 U.S.C. § 636(b)(1). Objections to the
magistrate’s proposed findings and recommendations must be made “with sufficient specificity
so as reasonably to alert the district court of the true ground for the objection.” United States v.
Midgette, 478 F.3d 616, 622 (4th Cir.), cert. denied, 551 U.S. 1157 (2007). However, “in the
absence of a timely filed objection, a district court need not conduct a de novo review, but
instead must only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation” and need not give any explanation for adopting the M&R.
Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis,
718 F.2d 198, 200 (4th Cir. 1983). After reviewing the record, the court may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge or
recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for “failure to state a
claim upon which relief can be granted” tests whether the complaint is legally and factually
sufficient. See Fed. R. Civ. P. 12(b)(6); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007); Coleman v. Md. Court of Appeals, 626 F.3d 187,
190 (4th Cir. 2010), aff'd, 566 U.S. 30 (2012). A court need not accept a complaint's “legal
conclusions, elements of a cause of action, and bare assertions devoid of further factual
enhancement.” Nemet Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir.
2009). The court, however, accepts all well-pled facts as true and draws all reasonable inferences
in Plaintiff’s favor. See Conner v. Cleveland Cty., N. Carolina, No. 19-2012, 2022 WL 53977, at
*1 (4th Cir. Jan. 5, 2022); E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637 F.3d 435,
440 (4th Cir. 2011). In so doing, the Court “must view the facts presented in the pleadings and
the inferences to be drawn therefrom in the light most favorable to the nonmoving party.” Pa.
Nat’l Mut. Cas. Ins. Co. v. Beach Mart, Inc., 932 F.3d 268, 274 (4th Cir. 2019). Construing the
facts in this manner, a complaint must contain “sufficient factual matter, accepted as true, to state
a claim to relief that is plausible on its face.” Pledger v. Lynch, 5 F.4th 511, 520 (4th Cir. 2021)
(quoting Ashcroft, 556 U.S. at 678). Thus, a motion to dismiss under Rule 12(b)(6) determines
only whether a claim is stated; “it does not resolve contests surrounding the facts, the merits of a
claim, or the applicability of defenses.” Republican Party v. Martin, 980 F.2d 943, 952 (4th Cir.
1992).
II. FACTS AND PROCEDURAL HISTORY
According to the Complaint, Plaintiff was a fifteen-year-old male enrolled in tenth grade
at Wilkes Central High School (the “school”) during the 2020-2021 academic year. On April 22,
2021, he was assaulted by five students in a school locker room during a weight-lifting class
being held in a different room. (Doc. No. 1, ¶¶ 20-21). The assault was recorded on video. (Id.).
The video depicted Plaintiff being held down against his will as he frantically kicked and
writhed. One student repeatedly attempted to forcibly shove the end of a broom handle into
Plaintiff’s rectum while he resisted. Other students either held him down or recorded the sexual
assault on their cell phones. No teachers, coaches, or other adults were present in the video. The
video was subsequently shared numerous times on social media. (Id. at ¶¶ 21-25).
Following the attack, an Assistant Principal at the school contacted Plaintiff’s father via
text message to inform him that his son had been involved (as a victim) in an “incident” at
school. (Id. at ¶¶ 16-17). When Plaintiff’s father arrived at the school, he was shown the video
along with his son and school administrators, including the school’s Principal. Upon viewing the
video, Dr. Stocks, the Principal, told the father that the boys were simply “horseplaying.” (Id. at
¶¶ 19, 27-30). Plaintiff and his father were then taken into a room where Plaintiff was forced to
confront his attackers. Plaintiff’s father declined to confront the students without their parents
being present. (Id. at ¶¶ 31-32).
After this meeting, and allegedly taking into account that the assailants were school
athletes, the school took no further action, including failing to do anything to discourage the
continued sharing of the video or disciplining the students who perpetrated the assault. (Id. at ¶¶
39-40, 59-60). When the police were finally called, after repeated requests from the Plaintiff’s
father, they had a very different reaction to the so-called “horseplay” and charged all the students
with criminal assault. (Id. at ¶¶ 41, 45).
Plaintiff did not complete school on the day of the attack and has not returned. He has
become withdrawn and distant, and no longer shows interest in his normal activities. Further,
Plaintiff and his father have relocated away from Wilkes County due to the consequences of the
attack and harassment by one of the perpetrators. (Id. at ¶¶ 34-38).
Plaintiff filed this action in October 2022, through his father as his representative. In the
Complaint, he alleges three causes of action against the School Board: (1) Civil Rights Violation
under 42 U.S.C. § 1983 for Illegal and Unlawful Seizure; (2) Civil Rights Violation under 42
U.S.C. § 1983 for Violation of Plaintiff’s Substantive Due Process Rights; and (3) Title IX
Violation Pursuant to 20 U.S.C. § 1681. The School Board moved to dismiss all of Plaintiff’s
claims under Federal Rules of Civil Procedure 12(b)(1), 12(b)(2), 12(b)(3) and 12(b)(6). (Doc.
No. 6). The motion was initially assigned to Magistrate Judge Cayer. In the M&R, Judge Cayer
recommends that the Court dismiss Plaintiff’s Section 1983 claims but allow his Title IX claims
to proceed. Plaintiff does not object to these recommendations. The School Board objects as to
the Title IX claim. The motion and objection are fully briefed and ripe for the Court’s decision.
III. DISCUSSION
As noted, Plaintiff has asserted claims against the School Board under both Section 1983
and Title IX. Following a thorough discussion, the M&R recommends that the Court grant the
motion to dismiss the Section 1983 claims. See Doc. No. 11 at 4-6. Neither party objects to this
recommendation. In the absence of an objection and finding not only the absence of clear error
but that the conclusion is correct as a matter of law, the Court will accept the recommendation
and dismiss the Section 1983 claims.
The Court will also accept the recommendation to deny the motion as to Plaintiff’s Title
IX claim. Under Title IX, “[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.” 20 U.S.C. § 1681(a). In
Davis v. Monroe Cnty. Bd. of Educ., the Supreme Court found that Title IX's prohibition on sex-
based discrimination encompasses student-on-student sexual harassment where the school “is
deliberately indifferent to known acts of student-on-student harassment and the harasser is under
the school’s disciplinary authority.” 526 U.S. 629, 646–47 (1999). The Court held that “funding
recipients are properly liable in damages only where they are deliberately indifferent to sexual
harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively
offensive that it can be said to deprive the victims of access to the educational opportunities or
benefits provided by the school.” Id. at 650.
To prove a Title IX claim on the basis of student-on-student sexual harassment, Plaintiff
must show: (1) he was a student at an educational institution receiving federal funds; (2) he was
subjected to harassment based upon his sex; (3) the harassment was so severe, pervasive, and
objectively offensive that it created a hostile or abusive educational environment; and (4) the
educational institution had actual knowledge of the harassment but was deliberately indifferent.
See Davis, 526 U.S. at 650; Rouse v. Duke Univ., 535 F. App'x 289, 293 n.* (4th Cir. 2013) (per
curiam) (unpublished); Jennings v. Univ. of N.C., 482 F.3d 686, 695 (4th Cir. 2007) (en banc). A
school acts with deliberate indifference where its “response to the [alleged] harassment or lack
[of such response] is clearly unreasonable in light of the known circumstances.” Davis, 526 U.S.
at 648. (emphasis added).
The School Board asks the Court to rule as a matter of law that “[a]s alleged, Defendant’s
conduct appears nothing but completely reasonable given the circumstances.” This request goes
beyond wishful thinking, particularly in light of the applicable standard of review under Rule
12(b)(6). Accepting the allegations of the Complaint as true, together with all reasonable
inferences, all the School Board did in response to a videotaped violent attempt by five male
students to sodomize a fifteen year old boy with a broom handle at school was to inform the
boy’s father about an “incident,” allow him to watch the video, and then “force” the boy and his
father to meet with the perpetrators of the attack (which Plaintiff asserts only increased the
harm). The School Board did not take any action to discourage the continued sharing of the
video or even discipline the attackers. Therefore, while the truth of Plaintiff’s allegations must of
course be determined as the case proceeds, it is, at a minimum, “plausible” that the School
Board’s allegedly dismissive response will be found to have been “clearly unreasonable” and
thus deliberately indifferent to the assault.
The School Board argues that its lack of control of its students’ social media accounts
insulates it from Title IX liability as to that portion of the Plaintiff’s claims. However, the Court
agrees with the Plaintiff that the reasonableness of the School Board’s alleged lack of an effort to
curtail the further distribution of the video of the assault (including any ruling on the legal limits
of the School Board’s ability to do so) must await the full development of the facts during
discovery. Again, the Court’s role at this early stage of the case is not to “resolve contests
surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992).
Finally, the School Board’s Motion to Dismiss under Rules 12(b)(1) for lack of subject
matter jurisdiction, 12(b)(2) for lack of personal jurisdiction, and 12(b)(3) for lack of venue can
be easily addressed. There is no question that Plaintiff has raised a federal question against a
Defendant who resides in this judicial district. Thus, the School Board’s additional Rule 12
motions simply bootstrap on its already rejected claim that Plaintiff’s claims under federal law
are meritless. As discussed above, Plaintiff has a valid claim under Title IX. Accordingly, the
School Board’s Motion to Dismiss under Rules 12(b)(1), 12(b)(2), and 12(b)(3) will be denied.
IV. ORDER
NOW THEREFORE IT IS ORDERED THAT:
1. The M&R is accepted, adopted and affirmed:
2. Defendant’s Motion to Dismiss (Doc. No. 6) is GRANTED as to Plaintiff's
claims under 42 U.S.C. $1983 but DENIED as to Plaintiffs claims under Title
IX, 20 U.S.C. §1681; and
3. This case shall proceed towards trial on the merits on the remaining claims in the
absence of a voluntary resolution of the dispute among the parties.
SO ORDERED ADJUDGED AND DECREED.
Signed: February 3, 2023
Kenneth D. Bell
United States District Judge □□ i