Zavada v. East Stroudsburg University

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

MARY ZAVADA,

Plaintiff, CIVIL ACTION NO. 3:22-CV-01074

v. (MEHALCHICK, J.)

EAST STROUDSBURG UNIVERSITY,

et al.,

Defendants.

MEMORANDUM

Before the Court is a motion to dismiss filed by Defendants East Stroudsburg

University (“ESU”) and Maria Cutsinger (“Cutsinger”) (collectively, “ESU Defendants”) on

January 30, 2024. (Doc. 70). On July 8, 2022, Plaintiff Mary Zavada (“Zavada”) commenced

this action by filing a complaint against Defendants ESU, Cutsinger, and Lanette Jones1

(“Jones”) (collectively, “Defendants”) for violations of Title IX of the Education

Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681, et seq, and 42 U.S.C § 1983. (Doc. 1).

On September 26, 2022, Zavada filed the amended complaint. (Doc. 12). On January 4, 2024,

Zavada filed the operative third amended complaint (“Third Amended Complaint”). (Doc.

68).

1 As noted in previous Memoranda in this case, on June 16, 2023, Jones filed a Chapter

13 Voluntary Petition for bankruptcy in the United States Bankruptcy Court for the Eastern

District of North Carolina. (Doc. 52); In re Jones, No. 23-01674-5-DMW (Bankr. E.D.N.C.

June 16, 2023). On July 5, 2023, the Court stayed all claims against Jones pursuant to 11

U.S.C. § 362(a). (Doc. 45). On August 17, 2023, Zavada filed a notice of dismissal of

Defendant Jones pursuant to Fed. R. Civ. P. 41(a)(1)(A)(i). (Doc. 51). Defendants Jones was

terminated from this action on August 21, 2023.

I. BACKGROUND AND PROCEDURAL HISTORY

On July 8, 2022, Zavada initiated this action by filing a complaint against Defendants.

(Doc. 1). Thereafter, Defendants filed motions to dismiss on September 12, 2022, and

September 13, 2022. (Doc. 7; Doc. 9). In response, Zavada filed an amended complaint on

September 26, 2022, which prompted the Court to strike Defendants’ motions to dismiss as

moot. (Doc. 12; Doc. 14). Defendants then filed another motion to dismiss on September 30,

2022, which was denied as to Counts One through Three and Five through Eight and granted

as to Count Four. (Doc. 15; Doc. 52). Zavada responded with a Third Amended Complaint.

(Doc. 68).

In the Third Amended Complaint, Zavada, a current student at ESU, claims that ESU

and Cutsinger failed to take meaningful action following her report of allegedly inappropriate

conduct by another student (“I.C.”). (Doc. 68). Zavada alleges that on November 29, 2021,

another ESU student, I.C., harassed her (“November 2021 incident”). (Doc. 68, ¶¶ 11-12).

Zavada avers that I.C. approached Zavada while she was outside with her dog, alone. (Doc.

68, ¶¶ 11-12). I.C. attempted to talk to Zavada, who did not want to engage with I.C. (Doc.

68, ¶¶ 13-14). When Zavada Facetimed her roommate for support, I.C. continued to follow

and yell at Zavada. (Doc. 68, ¶¶ 15-19). I.C. pressured Zavada to come with him to his dorm

room and threatened to enter Zavada’s room if she went back inside. (Doc. 68, ¶¶ 17, 19).

When Zavada returned to her room, I.C. began sending repeated online messages to Zavada.

(Doc. 68, ¶ 21). Zavada blocked I.C. on her phone. (Doc. 68, ¶ 22). Later that night while

Zavada was in bed, I.C. came to Zavada’s room, knocking on the door and demanding to

talk to Zavada, who pretended to be asleep. (Doc. 68, ¶¶ 23-27). Around 3AM, I.C. returned,

attempting to enter Zavada’s room and rattled the handle while pounding on the door. (Doc.

68, ¶¶ 30-31). Throughout the night Zavada attempted to call ESU’s on-duty phone number

three times for help, but each time Zavada received no answer. (Doc. 68, ¶¶ 28-29, 39-41).

The next day, Zavada reported the November 2021 incident to her resident assistant.

(Doc. 68, ¶ 42). On December 7, 2021, Zavada met with student misconduct official,

Cutsinger, to report the harassment. (Doc. 68, ¶ 45c). Cutsinger did nothing in response. (Doc.

68, ¶ 104b). On December 10, 2021, Zavada met with then-Title IX Coordinator Jones, who

did not explain Zavada’s Title IX rights, despite Zavada requesting to submit a formal

complaint. (Doc. 68, ¶¶ 47-53a). Zavada received a no-contact order on December 10, 2021

and stated her intention to file a formal Title IX complaint, which she believed was the same

as filing a formal complaint. (Doc. 68, ¶¶, 50-52). It was not, and Cutsinger and Jones did not

inform her otherwise. (Doc. 68). This led to Zavada’s complaint being delayed by several

months. (Doc. 68, ¶¶ 56-58). Cutsinger and Jones did not do anything else to respond to the

November 2021 incident. (Doc. 68).

On January 20, 2022, I.C. learned that Zavada was in her room, and began banging

on the door and “screaming phrases such as ‘room full of whores,’ ‘cum dumpsters,’ ‘can win

the battle but you can’t win the war,’ ‘respect me and I’ll respect you,’ and ‘I don’t want the

peace, I want the smoke’” (“January 2022 incident”). (Doc. 68, ¶ 62). Zavada videotaped the

January 2022 incident and called Jones, who called the police. (Doc. 68, ¶ 63). ESU took no

action to reprimand I.C. for violating the no-contact order, and ESU again did not inform

Zavada of her rights to file another Title IX complaint. (Doc. 68, ¶¶ 64-65). After the January

2022 incident, Zavada met with Cutsinger, who responded by questioning Zavada’s

truthfulness and suggesting that Zavada must have done something to provoke I.C. (Doc. 68,

¶¶ 69-74).

Prior to the January 2022 incident, at least one other ESU student had an open case

against I.C. (Doc. 68, ¶ 68a). Zavada suffered from mental and physical side effects, including

sleep difficulties and declining academic performance, as a result of both incidents. (Doc. 68,

¶¶ 76-79). On February 12, 2022, Zavada moved out of her dorm because she feared for her

own safety, after ESU repeatedly refused to move I.C. to a different dorm. (Doc. 68, ¶¶ 59-

61a, 77, 83). When Jones resigned as Title IX Coordinator because she felt ESU did not take

Title IX seriously, new Title IX officials at ESU told Zavada they had no knowledge of any

pending Title IX complaint by Zavada. (Doc. 68, ¶ 81, 87-96). Zavada alleges that ESU has

a policy of leniency for first-time Title IX violations, which have, in other circumstances led

to repeat offenders harassing or assaulting other students. (Doc. 68, at 31-34).

To summarize, Zavada avers that as a result of Defendants’ actions and inactions

towards the incidents occurring on November 29, 2021, and January 30, 2022, Zavada was

(1) sexually harassed by I.C.; (2) ESU Defendants had “actual knowledge” of harassment due

to her visits to the Title IX office and her attempts to report the incidents to both resident

assistants, Title IX coordinators, and student misconduct officials; (3) Defendants were

“deliberately indifferent” to the harassment; and (4) the harassment deprived Zavada of access

to educational opportunities and benefits. (Doc. 68).

Zavada sets forth the following causes of action in her Third Amended Complaint:

Post-Harassment Deliberate Indifference in violation of Title IX against ESU regarding the

November 2021 incident (Count One); Pre-Harassment Deliberate Indifference in violation

of Title IX against ESU regarding the January 2022 incident (Count Two); Post-Harassment

Deliberate Indifference in violation of Title IX against ESU regarding the January 2022

incident (Count Three); Failure to Train in violation of Title IX against ESU (Count Four)2;

Equal Protection in violation of 42 U.S.C. § 1983 Post-Harassment Deliberate Indifference in

violation of Title IX against Cutsinger, in her individual capacity, regarding the January 2022

incident (Count Eight); Equal Protection in violation of 42 U.S.C. § 1983 Post-Harassment

Deliberate Indifference in violation of Title IX against Cutsinger, in her individual capacity,

regarding the November 2021 incident (Count Nine); Equal Protection in violation of 42

U.S.C. § 1983 Pre-Harassment Deliberate Indifference in violation of Title IX against

Cutsinger, in her individual capacity, regarding the January 2022 incident (Count Ten); and

Policy, Practice, or Custom of “One Free Title IX Violation” in violation of Title IX against

ESU, regarding the January 2022 incident (Count Eleven). (Doc. 68). As relief, Zavada seeks

an award of monetary damages. (Doc. 68).

On January 30, 2024, ESU Defendants filed a renewed motion to dismiss, as well as

a brief in support. (Doc. 70; Doc. 71. On February 7, 2024, Zavada filed a brief in opposition

to the motion to dismiss. (Doc. 72). ESU Defendants’ motion to dismiss has been fully briefed

and is now ripe for disposition. (Doc. 70; Doc. 71; Doc. 72).

II. LEGAL STANDARDS

A. MOTION TO DISMISS STANDARD

Rule 12(b)(6) of the Federal Rules of Civil Procedure authorizes a defendant to move

to dismiss for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P.

12(b)(6). To assess the sufficiency of a complaint on a Rule 12(b)(6) motion, a court must first

2 When listing Count Four in her Third Amended Complaint, Zavada makes the note:

“By order dated August 28, 2023, the Court dismissed Count Four without prejudice. We

acknowledge that this Count is not effective in this Second Amended Complaint, but do not

delete it in order not to waive any rights regarding this Count.”

take note of the elements a plaintiff must plead to state a claim, then identify mere conclusions

that are not entitled to the assumption of truth, and finally determine whether the complaint’s

factual allegations, taken as true, could plausibly satisfy the elements of the legal claim. Burtch

v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011). In deciding a Rule 12(b)(6) motion,

the court may consider the facts alleged on the face of the complaint, as well as “documents

incorporated into the complaint by reference, and matters of which a court may take judicial

notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).

After recognizing the required elements that make up the legal claim, a court should

“begin by identifying pleadings that, because they are no more than conclusions, are not

entitled to the assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The plaintiff

must provide some factual ground for relief, which “requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). “[T]hreadbare recitals of the elements of

a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S.

at 678. Thus, courts “need not credit a complaint’s ‘bald assertions’ or ‘legal conclusions’. . . ”

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (quoting In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1429-30 (3d Cir. 1997)). Nor need a court assume that a

plaintiff can prove facts that the plaintiff has not alleged. Associated Gen. Contractors of Cal. v.

Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983).

A court must then determine whether the well-pleaded factual allegations give rise to

a plausible claim for relief. “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.” Palakovic v. Wetzel, 854 F.3d 209, 219-20 (3d Cir. 2017) (quoting

Iqbal, 556 U.S. at 678) (internal quotation marks omitted); see also Sheridan v. NGK Metals

Corp., 609 F.3d 239, 262 n.27 (3d Cir. 2010). The court must accept as true all allegations in

the complaint, and any reasonable inferences that can be drawn therefrom are to be construed

in the light most favorable to the plaintiff. Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d

1250, 1261 (3d Cir. 1994). This “presumption of truth attaches only to those allegations for

which there is sufficient factual matter to render them plausible on their face.” Schuchardt v.

President of the U.S., 839 F.3d 336, 347 (3d Cir. 2016) (internal quotation and citation omitted).

The plausibility determination is context-specific and does not impose a heightened pleading

requirement. Schuchardt, 839 F.3d at 347.

B. 42 U.S.C. SECTION 1983

Section 1983 is the vehicle by which private citizens may seek redress for violations of

federal constitutional rights committed by state officials. See 42 U.S.C. § 1983. The statute

states, in pertinent part:

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

or usage, of any State or Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United States or other person within

the jurisdiction thereof to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws, shall be liable to the party

injured in an action at law, suit in equity, or other proper proceeding for redress.

42 U.S.C. § 1983.

“Section 1983 is not a source of substantive rights,” but is merely a means through

which “to vindicate violations of federal law committed by state actors.” See Pappas v. City of

Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004) (quoting Gonzaga Univ. v. Doe, 536 U.S.

273, 284-85 (2002)). To state a cause of action under Section 1983, a plaintiff must allege that:

(1) the conduct complained of was committed by persons acting under color of state law; and

(2) the conduct violated a right, privilege, or immunity secured by the Constitution or laws of

the United States. See Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 189 (3d Cir. 2005)

(quoting West v. Atkins, 487 U.S. 42, 48 (1988)).

III. DISCUSSION

ESU Defendants move to dismiss the Third Amended Complaint, setting forth a

multitude of reasons as to why the Third Amended Complaint fails to state a claim upon

which relief may be granted. (Doc. 71, at 2). ESU Defendants first argue, as a threshold

matter, that all Title XI claims in Counts One – Three and Eleven be dismissed because

Zavada fails to demonstrate the alleged conduct of I.C. was sufficiently severe, persistent, and

pervasive that it effectively denied her access to educational opportunities provided by ESU.

(Doc. 71, at 24). ESU Defendants separately contend that Counts One and Two should be

dismissed because the conduct Zavada refers to in those Counts was not sexual in nature.

(Doc. 71, at 20-21). ESU Defendants next assert that Count Eleven should also be dismissed

because (1) state universities are not liable to private plaintiffs under a “policy, practice, or

custom theory”; (2) Zavada fails to allege that her injuries result from any policy, practice, or

custom; and (3) Zavada fails to allege facts sufficient to state a claim. (Doc. 71, at 15-20).

Finally, regarding the individual liability of Cutsinger in Counts Eight – Ten, ESU

Defendants argue that Zavada alleges no facts that Cutsinger was required to respond to or

take corrective action related to the alleged sexual harassment. (Doc. 71, at 7-13).3 In

opposition, Zavada argues that ESU Defendants may not make successive motions to dismiss,

including new arguments which could have been made in previous motions to dismiss. (Doc.

3 ESU Defendants also make the argument that punitive damages are not available for

Title IX claims. (Doc. 71, at 31). Zavada seeks punitive damages only for § 1983 claims, so

this argument is inapplicable. (Doc. 68, at 34).

72, at 5-6). Zavada further responds that the Third Amended Complaint sufficiently alleges

claims under Title IX and against Cutsinger, under 42 U.S.C. § 1983. (Doc. 72).

A. PLAINTIFF’S TITLE IX CLAIMS

1. Plaintiff’s Allegations of Severe, Pervasive and Objectively Offensive

Harassment (Counts One – Three and Count Eleven)

ESU Defendants submit that all Title IX claims in Counts One – Three and Eleven

should be dismissed because Zavada fails to demonstrate the alleged conduct of I.C. was

sufficiently severe, persistent, and objectively offensive that it effectively denied her access to

educational opportunities provided by ESU. (Doc. 71, at 24). ESU Defendants further

contend that the allegations in Counts One and Two are not “sexual in nature.” (Doc. 71, at

20-21). Zavada responds that this Court must deny ESU Defendants’ motion on the grounds

that ESU Defendants make novel arguments in this successive motion to dismiss that could

have been made in their previous motion to dismiss. (Doc. 72, at 5-6). According to Zavada,

the Federal Rules of Civil Procedure bar successive motions to dismiss identical allegations.

(Doc. 72, at 5-6). This Court agrees.

Rule 12(g)(2) of the Federal Rules of Civil Procedure provide that “a party that makes

a motion under [Rule 12] must not make another motion under this rule raising a defense or

objection that was available to the party but omitted from its earlier motion.” Fed. R. Civ. P.

12(g)(2). The purpose of this bar on successive motions raising novel arguments is to

“eliminate unnecessary delay at the pleading stage by encouraging the presentation of an

omnibus pre-answer motion in which the defendant advances every available Rule 12 defense

simultaneously rather than interposing these defenses and objections in piecemeal fashion.”

Leyse v. Bank of Am. Nat. Ass'n, 804 F.3d 316, 320 (3d Cir. 2015). This rule applies to all

motions in the pre-answer phase of litigation, including motions to dismiss, regardless of the

grounds upon which they are asserted. See Rivera-Guadalupe v. Pierce, No. 1:19-CV-1400, 2021

WL 199373, at *4 (M.D. Pa. Jan. 20, 2021) (“‘The procedural bar of Rule 12(g)(2) [ ] covers

all motions to dismiss for failure to state a claim, regardless of the grounds asserted.’”)

(quoting Leyse, 804 F.3d at 321).

The only exceptions to the Rule 12(g)(2) bar on successive motions is found is Rule

12(h). Fed. R. Civ. P. 12(h). First, Rule 12(h)(3) exempts motions to dismiss for lack of subject

matter jurisdiction. Leyse, 804 F.3d at 320. Second, Rule 12(h)(2) allows a party to raise a

successive motion to dismiss “‘(A) in any pleading allowed or ordered under Rule 7(a); (B)

by a motion under Rule 12(c); or (C) at trial.’” Leyse, 804 F.3d at 320 (quoting Fed. R. Civ.

P. 12(h)(2)). Here, neither exception applies, as the instant motion to dismiss was not a Rule

7(a) pleading, a Rule 12(c) motion, or raised at trial.

Because ESU Defendants brought their initial motion to dismiss pursuant to Rule 12,

and could have raised its arguments that (1) Zavada did not allege sufficiently severe,

pervasive, or objectively offensive harassment that interfered with her education opportunities

sufficient to state a Title IX claim, and (2) that the Title IX claims should be analyzed

separately according to time frames of the allegations, it cannot raise these arguments now.

See Leyse, 804 F.3d at 320 (holding that a successive motion to dismiss was barred by Rule

12(g)(2) when the “second motion to dismiss was plainly neither a Rule 7(a) pleading nor a

motion raised at trial. Nor was it a Rule 12(c) motion for judgment on the pleadings, which

may be filed only ‘[a]fter the pleadings are closed.’”) (quoting Fed. R. Civ. P. 12(c)).

Accordingly, ESU Defendants motion to dismiss Zavada’s Title IX claims in Counts One –

Three is DENIED.4

2. Policy, Practice, or Custom liability (Count Eleven)

Zavada brings Count Eleven, asserting violation of Title IX based upon ESU’s alleged

“policy, practice, or custom” of allowing perpetrators “one free violation” before disciplining

them. (Doc. 68, at 31). ESU Defendants provide that they cannot find a case in this Circuit

where a plaintiff successfully brought a Title IX claim asserting a policy, practice, or custom

theory of liability. (Doc. 71, at 15). Instead, ESU Defendants argue that these cases are

brought as Equal Protection Clause asserted under § 1983, thus triggering a Monell framework

analysis used for municipal liability claims. (Doc. 71, at 16). According to Defendants,

Zavada’s claim must then be dismissed because a Monell claim “has not been recognized as a

4 This Court recognizes that Count Eleven was not asserted in Zavada’s Second

Amended Complaint. Therefore, the bar on successive motions to dismiss does not apply to

ESU Defendants’ arguments related to this Count. Regardless, this Court has already found

that Zavada has alleged sufficiently severe, pervasive, and objectively offensive harassment to

state a Title IX claim. (Doc. 52). The undersigned sees no reason to deviate from that finding

now. To reiterate, Zavada reported being “stalked” and “harassed” by I.C. through in-person

and online interactions on November 29, 2021, and January 20, 2022, and feeling “unsafe

and susceptible” and “as if she had no choice in order to protect herself, moved off of

campus.” (Doc. 68, ¶¶ 22-25, 83). When Zavada tried to report the harassment to Cutsinger

and other ESU officials, she was not informed of her rights under Title IX regarding

supportive measures and there was no investigation of Zavada’s allegations between

December 10, 2021, and January 19, 2021. (Doc. 68, ¶¶ 45c- 58). Cutsinger accused Zavada

of lying about the allegations. (Doc. 68, ¶¶ 69-74). The alleged instances of stalking and sex-

based harassment was so severe and/or pervasive that Zavada “suffered severe mental and

physical side effects,” her academic ability declined, and she moved off campus. (Doc. 68, ¶¶

76, 79, 83). Finally, Zavada had to resubmit her written Title IX complaint. (Doc. 68, ¶ 93).

Therefore, ESU Defendants’ motion to dismiss Count Eleven on the grounds that Zavada

does not allege sufficiently severe, and objectively offensive harassment is DENIED. (Doc.

70). See S.M. v. Tamaqua Area Sch. Dist., No. 3:22-CV-00525, 2023 WL 2332251, at *6 (M.D.

Pa. Mar. 2, 2023) (finding that a plaintiff stated a Title IX claim for student-on-student sexual

harassment when the school did not acknowledge the harassment was sexual in nature, did

not initiate an investigation after becoming aware of the allegations, and failed to take

corrective action, leading a plaintiff to withdraw from his school).

theory of liability against a state actor under Title IX.” (Doc. 71, at 16). ESU Defendants next

argue that even if the Court recognizes a Title IX claim in Count Eleven, Zavada fails to allege

(1) that her injuries result from any policy, practice, or custom and (2) facts sufficient to state

a pre-assault claim. (Doc. 71, at 15-20). Zavada responds that she does not assert a Monell

claim. (Doc. 72, at 13-14). Instead, she contends that her Title IX claim survives, as “ESU’s

practice of not acting on a first assault/harassment/stalking incident led to the January 2022

incident (pre-assault theory).” (Doc. 72, at 13-14). As discussed supra n.1, the Court has found

facts sufficient to state a Title IX claim in Count Eleven. Therefore, the only remaining issues

are (1) whether ESU Defendants can properly be liable to private plaintiffs under Title IX for

a “policy, practice, or custom” that creates deliberate indifference and if so, (2) whether

Zavada has sufficiently alleged that her injuries result from ESU Defendants’ policy, practice,

or custom.

A plaintiff must prove five elements to recover under Title IX based on student-on-

student harassment:

(1) the defendant receives federal funds; (2) sexual harassment occurred; (3) the

harassment was “so severe, pervasive, and objectively offensive that it [could]

be said to [have] deprive[d] the victims of access to the educational

opportunities or benefits provided by the school;” (4) the harassment occurred

under “circumstances wherein the recipient exercise[d] substantial control over

both the harasser and the context in which the known harassment occur[red]”

(5) the funding recipient had “actual knowledge” of the harassment; and (6) the

funding recipient was “deliberately indifferent” to the harassment.

A.T. v. Oley Valley Sch. Dist., No. CV 17-4983, 2021 WL 5792695, at *18 (E.D.

Pa. Dec. 7, 2021) (quoting Davis v. Monroe Cty. Bd. of Educ., 526 U.S. 629, 650

(1999)).

In Davis v. Monroe Cty. Bd. of Educ., the Supreme Court weighed “whether a private

damages action may lie against the school board in cases of student-on-student harassment,”

and concluded that “it may, but only where the funding recipient acts with deliberate

indifference to known acts of harassment in its programs or activities.” 526 U.S. at 633. The

Court continued that “such an action will lie only for harassment that is so severe pervasive,

and objectively offensive that it effectively bars the victim's access to an educational

opportunity or benefit.” Davis, 526 U.S. at 633. The Court explained that where a “funding

recipient does not engage in harassment directly, it may not be liable for damages unless its

deliberate indifference subjects its students to harassment. That is, the deliberate indifference

must, at a minimum, cause students to undergo harassment or make them liable or vulnerable

to it.” Davis, 526 U.S. at 644-45 (internal quotations and citing references omitted).

Educational institutions “may be liable for ‘subject[ing]’ their students to discrimination

where the [institution] is deliberately indifferent to known acts of student-on-student sexual

harassment and the harasser is under the school's disciplinary authority.” Davis, 526 U.S. at

646-47. The Court went further, however, adding that “[s]chool administrators will continue

to enjoy the flexibility they require so long as funding recipients are deemed ‘deliberately

indifferent’ to acts of student-on-student harassment only where the recipient's response to the

harassment or lack thereof is clearly unreasonable in light of the known circumstances.” Davis,

526 U.S. at 648.

“[S]chools can only be liable for ‘deliberate indifference to known acts of peer sexual

harassment,’” meaning “that ‘the [funding] recipient's response to the harassment or lack

thereof is clearly unreasonable in light of the known circumstances.’” Raihan v. George

Washington Univ., 324 F. Supp. 3d 102, 108 (D.D.C. 2018) (quoting Davis, 526 U.S. at 648).

Factors other courts consider in determining whether something was clearly unreasonable

include the time it took the district to respond to complaints, the level of response, the effort

expended to respond to the allegations, and the efficacy of the response. See, e.g., Doe v.

Rutherford Cty., Tenn., Bd. of Educ., No. 3:13-cv-00328, 2014 WL 4080163, at *13 (M.D. Tenn.

Aug. 18, 2014) (finding the district was deliberately indifferent when the district “dragged

their feet for months in response to potentially serious allegations”); Zeno v. Pine Plains Cent.

Sch. Dist., 702 F.3d 655, 670 (2d Cir. 2012) (affirming jury's finding that the school was

deliberately indifferent when the district delayed a response to allegations for a year or more

and then gave only a “half-hearted” response).

In Count Eleven, Zavada does not state the words “deliberate indifference” in the

heading of the Count, but instead introduces Count Eleven as a “Policy, Practice, or Custom

of ‘One Free Title IX Violation’ in Violation of Title IX, 20 U.S.C. § 1681, et seq.” (Doc. 68,

at 31). Later, when listing other incidents of alleged harassment and the school’s failure to

respond adequately, Zavada alleges, “ESU’s practice, policy, or custom of giving sexual

assaulters, sexual harassers, and stalkers ‘one free Title IX violation’, constituted deliberate

indifference to Ms. Zavada and caused the January 20, 2022 incident.” (Doc. 68, at 34)

(emphasis added). Therefore, the Court interprets Count Eleven as not a Monell claim, but as

Zavada correctly explains, a traditional Title IX claim based upon deliberate indifference.

(Doc. 72, at 12-13).

In addressing ESU Defendants’ previous motion to dismiss, this Court considered a

similar issue. (Doc. 52). Then, Zavada had asserted Count Four as a failure-to-train claim in

violation of Title IX. (Doc. 52, at 10). This Court dismissed Count Four, finding that

“Zavada’s allegations do not rise to the level of deliberate indifference necessary to impose

Title IX liability on an official policy claim.” (Doc. 52, at 11). The undersigned continued,

“[t]he amended complaint pleads no facts making it plausible that ESU had knowledge of a

risk of sexual harassment on campus or notice that its policies and responses to sexual

harassment are deficient and a subsequent failure to remedy the deficiencies. Without specific

evidence beyond ESU’s failure to implement fully its own policy, and its conduct in Zavada’s

case, this case amounts to one of alleged official negligence, not intent.” (Doc. 52, at 11).

Here, to the contrary, the Court finds the allegations in Count Eleven, taken as true, to be

specific evidence of official university policy that is at least partly responsible for Zavada’s

assault. See, e.g., Raihan, 324 F. Supp. 3d at 111 (dismissing a Title IX claim based upon a

policy, practice, or custom theory of liability when a plaintiff failed to make allegations “that

official University policy was responsible for her assault” and stating “[g]eneralized claims of

bad sexual misconduct policy—with the only specific incident coming in the form of

[plaintiff’s] own case.”); Simpson v. Univ. of Colorado Boulder, 500 F.3d 1170, 1178 (10th Cir.

2007) (“Implementation of an official policy can certainly be a circumstance in which the

recipient exercises significant ‘control over the harasser and the environment in which the

harassment occurs.’”) (quoting Davis, 526 U.S. at 644).

In the amended complaint, Zavada alleges that ESU Defendants were deliberately

indifferent to sex-discrimination because ESU had a “policy, practice, or custom” of leniency

for first-time perpetrators. (Doc. 68, at 31). Specifically, Zavada avers that “ESU has

maintained and continues to maintain a practice, policy, or custom of giving sexual assaulters,

sexual harassers, and stalkers ‘one free Title IX violation.’” (Doc. 68, ¶ 167). Zavada then

cites facts, taken as true at this stage in the litigation, that Jane Does 1, 2, and 3 each reported

sexual harassment or assault by ESU students, which ESU officials failed to adequately

respond to. (Doc. 68, at 31-33). For example, in the case of Jane Does 2 and 3, Zavada alleges

that Jane Doe 3 reported another student for sexual assault. (Doc. 68, at 32-33). After ESU

officials took no action, this same individual assaulted Jane Doe 2. (Doc. 68, at 32-33). Most

relevant to Zavada’s own case, another student, M.R., had reported I.C. for sexual

harassment before I.C. began harassing Zavada. (Doc. 38, at 33). ESU officials again took no

action, instead stating that they would take action only if harassment occurred another time.

(Doc. 68, at 33). According to Zavada, ESU Defendants’ custom of not imposing

consequences on first-time perpetrators directly led to I.C.’s continued harassment of Zavada.

(Doc. 68, at 34). This eventually caused the January 2022 incident, and Zavada’s injuries,

including academic and sleep difficulties and her move off campus, thus limiting her access

to her education. (Doc. 68, at 34).

Courts in other Circuits have recognized Title IX claims in similar circumstances. In

Simpson v. Univ. of Colorado Boulder, the Tenth Circuit found that a Title IX recipient could be

liable for an official “policy of deliberate indifference to providing adequate training or

guidance that is obviously necessary for implementation of a specific program or police.” 500

F.3d at 1178. The court likened this theory of liability to municipal liability for an officer’s

constitutional violation under 42 U.S.C. § 1983, and noted that an “obvious need” can be

established by knowledge of previous incidents or because the potential for such a violation

was “highly predictable.” Simpson, 500 F.3d at 1178 (citing City of Canton v. Harris, 489 U.S.

378, 390 (1989)). It further found that the evidence could support a finding that there was an

obvious risk of assault during football recruiting events because of multiple reports of sexual

assault and harassment by football players, a known lack of oversight during football

recruiting events, specifically related to alcohol and sex, and the football team leadership’s

apparent hostility to those alleging sexual harassment. Simpson, 500 F.3d at 1180-85. While

Count Eleven is not a failure-to-train claim, the Simpson Court’s reasoning is applicable here

as well. Zavada’s allegations in Count Eleven include a slew of examples of individuals

reporting sexual misconduct to ESU officials, only to be met with inadequate action, if any

action at all. (Doc. 68, at 31-34). These averments could support a finding that ESU’s alleged

official “policy of deliberate indifference” to addressing reports of harassment, response to

which is “obviously necessary for implementation of a specific program or police.” Simpson,

500 F.3d at 1178. Zavada’s alleges of previous incidents, which led to second-time “highly

predictable” assaults by the same perpetrator. Simpson, 500 F.3d at 1178. These allegations

are sufficient to show an “obvious need” to address such reports which have been “established

by [ESU’s] knowledge of previous incidents,” which made Zavada’s assault “predictable.”

Simpson, 500 F.3d at 1178.

In Doe 1 v. Baylor Univ., the Western District of Texas denied Baylor University’s

motion to dismiss Title IX claims. 240 F. Supp. 3d 646 (W.D. Tex. 2017). In that case, a

plaintiff alleged that “Baylor's handling of reports of sexual assaults created a heightened risk

of sexual assault throughout the university's student body.” Doe 1, 240 F. Supp. 3d at 661.

The Doe 1 Court analyzed the claim under the official policy framework and “consider[ed]

whether the defendant-institution's policy or custom inflicted the injury of which the plaintiffs

complain.” Doe 1, 240 F. Supp. 3d at 661; see also Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S.

274, 290 (1998) (finding an analogue to Title IX legal philosophy in municipal liability

claims); Davis, 526 U.S. at 642). The Doe 1 Court found deliberate indifference based upon

the university’s alleged practice of discouraging sexual assault reports, failing to investigate

sexual assault reports, and misinforming victims of their rights under Title IX. Doe 1, 240 F.

Supp. 3d at 662.

Here, Zavada alleges that ESU officials, not just in her case but in others like it, failed

to investigate sexual assault reports, which allowed subsequent assaults by the same

perpetrator to occur. (Doc. 68, at 31-34). She also avers that ESU officials did not inform her

of her Title IX rights, including her right to supportive measures, or explain how to file a

formal complaint after she expressed a desire to do so, leading to a delay in filing her formal

complaint. (Doc. 68, ¶¶ 45-58, 69-86). These alleged facts, taken as true, can support the

inference that that ESU Defendants’ handling of sexual harassment allegations created a

heightened risk of harassment and led to Zavada’s injuries. See Tubbs v. Stony Brook Univ., No.

15 CIV. 0517 (NSR), 2016 WL 8650463 (S.D.N.Y. Mar. 4, 2016) (denying motion to dismiss

Title IX claims because “[t]he knowledge of an increase in sexual assaults on campus,

combined with notice that SUNY's policies and responses to sexual assaults are deficient and

a subsequent failure to remedy the deficiencies, may satisfy the heightened pleading

standard.”); Doe 1, 240 F. Supp. 3d at 662; Simpson, 500 F.3d at 1178. In other words, Zavada

alleges the requisite deliberate indifference necessary in a Title IX claim through allegations

that ESU’s practice of leniency regarding time-time sexual harassment constitutes “a response

to the harassment or lack thereof [that] is clearly unreasonable in light of the known

circumstances.” Davis, 526 U.S. at 648. Accordingly, ESU Defendants’ motion to dismiss

Count Eleven is DENIED. (Doc. 70).

B. CUSTINGER’S INDIVIDUAL LIABILITY (COUNTS EIGHT – TEN)

In Counts Eight – Ten, Zavada asserts claims of denial of Equal Protection under the

Fourteenth Amendment pursuant to 42 U.S.C. § 1983 against Defendant Cutsinger.5 (Doc.

68, at 27-30). More specifically, Zavada asserts Cutsinger failed to address known student-on-

5 The Court previously analyzed Cutsinger’s individual role in failing to address known

student-on-student sexual harassment when it addressed ESU Defendants’ earlier motion to

dismiss. (Doc. 52). The Court will reiterate that analysis here but sees no reason to come to a

different conclusion.

student sexual harassment in violation of the Equal Protection Clause of the Fourteenth

Amendment, resulting in Zavada being subjected to additional harassment and denied equal

access to her education. (Doc. 68, at 27-30).

ESU Defendants move to dismiss Counts Eight – Ten, arguing that Zavada does not

allege that Cutsinger was required to respond to or take corrective action related to the alleged

sexual harassment. (Doc. 71, at 7-13). Thus, according to ESU Defendants, Cutsinger cannot

be individually liable for violating the Equal Protection Clause of the Fourteenth

Amendment. (Doc. 71, at 7). In opposition, Zavada asserts that as a student misconduct

official, Cutsinger was responsible for actions and inactions related to the alleged sexual

harassment, as this Court previously rules. (Doc. 72, at 10; Doc. 52).6

To reiterate, in general, § 1983 does not itself create substantive rights, but instead

provides a vehicle for vindicating a violation of a federal right. Groman v. Twp. of Manalapan,

47 F.3d 628, 633 (3d Cir. 1995). A cause of action under § 1983 has two elements: a plaintiff

must prove (1) a violation of a right, privilege or immunity secured by the constitution and

laws of the United States (2) that was committed by a person acting under color of state law.

Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996); Kelly v. Borough of Sayreville, 107 F.3d

6 In making their argument, ESU Defendants analyze Cutsinger’s conduct related to

the two incidents of alleged harassment in November 2021 and January 2022 separately.

Zavada contends that Cutsinger’s actions or inactions cannot be viewed “in isolation from

other facts and incidents.” (Doc. 72, at 11). Instead, Zavada suggests that “Cutsinger’s

deliberate indifference throughout is what constitutes the Equal Protection violation.” (Doc.

72, at 11). As a preliminary matter, the Court agrees with Zavada that sexual harassment

allegations involving multiple incidents of alleged harassment should not be analyzed as

separate and isolated from one another. When addressing Zavada’s allegations against

Cutsinger and Jones in the previous motion to dismiss, the Court analyzed Custinger’s actions

as a whole throughout the case. (Doc. 52). It will do so again here.

1073, 1077 (3d Cir. 1997); Berg v. Cty. of Allegheny, 219 F.3d 261, 268 (3d Cir. 2000) (“The

Plaintiff must demonstrate that a person acting under color of law deprived him of a federal

right.”) (citing Groman, 47 F.3d at 633).

Under the Equal Protection Clause of the Fourteenth Amendment, a state may not

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const.

amend. XIV, § 1; see Shuman ex rel. Shertzer v. Penn Manor Sch. Dist., 422 F.3d 141, 151 (3d Cir.

2005). To succeed on a § 1983 equal protection claim for deliberate indifference to known

student-on-student sexual harassment, a plaintiff must allege that she “was subjected to the

discriminatory peer harassment.” Feminist Majority Found. v. Hurley, 911 F.3d 674, 702 (4th

Cir. 2018) (citing Stiles ex rel. D.S. v. Grainger Cty., 819 F.3d 834, 852 (6th Cir. 2016)); see also

Chambers ex rel. Chambers v. Sch. Dist. Of Philadelphia Bd Of Educ., 587 F.3d 176, 196 (3d Cir.

2009) (“To bring a successful claim under 42 U.S.C. § 1983 for a denial of equal protection,

plaintiffs must prove the existence of purposeful discrimination.”). Additionally, the plaintiff

must allege that the school official “responded to the discriminatory peer harassment with

deliberate indifference, i.e. in a manner clearly unreasonable in light of known

circumstances.” Feminist Majority Found., 911 F.3d at 702 (citing Stiles ex rel. D.S., 819 F.3d at

852); see also Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135 (9th Cir. 2003). In

other words, the plaintiff must allege that the school administrator knew about harassment of

the plaintiff “and acquiesced in that conduct by refusing to reasonably respond to it.” Murrell

v. Sch. Dist. No. 1, Denver, Colo., 186 F.3d 1238, 1250 (10th Cir. 1999); see also Hill v. Cundiff,

797 F.3d 948, 978 (11th Cir. 2015) (same). Finally, the individual the plaintiff seeks to

Applying the foregoing legal principles to this situation, the Court is satisfied that, for

the reasons set forth in the discussion of Zavada's Title IX sex discrimination claims, Zavada

has sufficiently alleged equal protection claims against Cutsinger for her role in the November

2021 and January 2022 incidents. See Hill, 797 F.3d at 979 (referring to Title IX analysis in

discussing equal protection claim); Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d

360, 369 (6th Cir. 2005) (recognizing “substantial[ ]” similarity between standards for

deliberate indifference claims under Title IX and § 1983). In sum, the Third Amended

Complaint alleges that an ESU student, I.C., harassed and stalked Zavada based on her sex.

(Doc. 68, ¶¶ 11-41, 62-63). The Third Amended Complaint further alleges that Cutsinger had

actual knowledge of the alleged stalking and harassment and responded with deliberate

indifference, in that she had the authority to address and curtail the harassment but failed to

do so over a period of months. (Doc. 68, ¶¶ 45c, 69-74); see Jennings v. Univ. of North Carolina,

482 F.3d 686, 701-02 (4th Cir. 2007) (explaining that district court erred in awarding summary

judgment to university administrator who ignored students’ complaints of subordinate's

sexually harassing behavior, thereby allowing subordinate to engage in further sexual

harassment of students); see also, e.g., Flores, 324 F.3d at 1135-36 (concluding that plaintiffs

sufficiently alleged equal protection claim against individual school employees who failed to

locate or discipline student harassers).

In support of her claims that Cutsinger was deliberately indifferent by failing to take

corrective action despite her authority to do so, Zavada describes a series of interactions with

Cutsinger. First, Zavada provides that she attempted to file Title IX complaints, but her

requests were either deliberately ignored or disregarded. (Doc. 68, ¶¶ 45c, 69-74, 76). Zavada

alleges that Cutsinger had actual knowledge of the harassment because Zavada reported the

November 2021 incident to Cutsinger on December 7, 2021. (Doc. 86, ¶ 45c). Cutsinger did

nothing in response to Zavada’s report. (Doc. 68, ¶ 104b). After the January 2022 incident,

Zavada again met with Cutsinger to report the second incident. (Doc. 68, ¶¶ 69-74). During

this conversation, Zavada alleges that Cutsinger did not believe Zavada’s complaints and

suggested that she was lying or responsible for I.C.’s conduct. (Doc. 68, ¶¶ 69-74, 76).

Specifically, instead of remedying the situation or providing Zavada with information about

her Title IX rights, Zavada submits that Cutsinger questioned Zavada about “instigating” I.C.

(Doc. 68, ¶ 74, 76). Further, Cutsinger had the authority to take corrective action because

Zavada specifically alleges that ESU directed Cutsinger to address Zavada’s reports. (Doc.

68, ¶ 69). Additionally, ESU Defendants’ argument that only a Title IX Coordinator can take

corrective action for Title IX violations is a falsehood. See L.S. v. Hanover Area Sch. Dist., No.

3:22CV234, 2024 WL 2393038, at *9 (M.D. Pa. May 23, 2024) (highlighting the Title IX

statutory language that for the purposes of a Title IX claim, a victim of harassment can report

the misconduct to a Title IX Coordinator or “any official [. . . ] who has authority to institute

corrective measures”) (quoting 34 C.F.R. § 106.30(a) (2020)) (emphasis added). Therefore, as

Zavada correctly notes, a school official does not need to be a formal Title IX officer to have

the authority to take corrective action for the purposes of a Title IX claim. (Doc. 72, at 9-10);

see S.K. v. N. Allegheny Sch. Dist., 168 F. Supp. 3d 786, 801 (W.D. Pa. 2016) (“A school

principal and a school district superintendent are appropriate school officials to whom

student-on-student harassment should be reported and each is capable of taking corrective

action to eliminate the inappropriate conduct.”) (citing Warren v. Reading Sch. Dist., 278 F.3d

163, 171 (3d Cir.2002)). Cutsinger was a student misconduct official, so it follows that she

had the authority to respond to Zavada’s complaint of student misconduct in the form of

harassment. (Doc. 68, ¶ 69). Therefore, the Court finds that Zavada has sufficiently alleged

that Cutsinger had the ability to take corrective action but was a deliberately indifferent,

satisfying her pleading burden for Equal Protection claims. ESU Defendants’ motion to

dismiss Counts Eight – Ten is DENIED.

IV. CONCLUSION

For the foregoing reasons, ESU Defendants’ motion to dismiss (Doc. 70) is DENIED.

An appropriate Order follows.

BY THE COURT:

Dated: September 26, 2024 s/ Karoline Mehalchick

KAROLINE MEHALCHICK

United States District Judge