Young v. West Virginia University

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

BRYANT KEITH YOUNG,

Plaintiff,

v. CIVIL NO. 1:21-CV-35

(KLEEH)

WEST VIRGINIA UNIVERSITY,

WEST VIRGINIA UNIVERSITY BOARD

OF GOVERNORS, and DR. KATHLEEN

O’HEARN RYAN,

Defendants.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

Pending before the Court is a Report and Recommendation

(“R&R”) from United States Magistrate Judge Michael J. Aloi (the

“Magistrate Judge”). For the reasons discussed herein, the Court

ADOPTS the R&R to the extent consistent with this Memorandum

Opinion and Order, grants Defendants’ amended motion to dismiss,

and dismisses this action.

I. INTRODUCTION AND PROCEDURAL HISTORY

On March 15, 2021, the pro se Plaintiff, Bryant Keith Young

(“Plaintiff”), filed a Complaint against the Defendants, West

Virginia University, West Virginia University Board of Governors

(“WVUBOG”), and Dr. Kathleen O’Hearn Ryan (“Dr. Ryan”) (together,

“Defendants”). Defendants filed a motion to dismiss and, on the

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

same day, an amended motion to dismiss. The motion was fully

briefed.

The Magistrate Judge then issued an R&R, recommending that

the Court dismiss the action. The R&R informed the parties that

they had 14 days after receipt of the R&R to file objections.

Plaintiff received service of the R&R on June 30, 2021. On July

14, 2021, which was 14 days after his receipt of the R&R, Plaintiff

filed a motion for extension of time to file objections. He also

attached objections. While the Court finds that Plaintiff has not

shown good cause for an extension, the Court will consider the

objections filed by Plaintiff and notes that they were, in fact,

timely.

II. STANDARD OF REVIEW

Rule 12(b)(6) allows a defendant to move for dismissal upon

the ground that a complaint does not “state a claim upon which

relief can be granted[.]” In ruling on a 12(b)(6) motion to

dismiss, a court “must accept as true all of the factual

allegations contained in the complaint.” Anderson v. Sara Lee

Corp., 508 F.3d 181, 188 (4th Cir. 2007) (quoting Erickson v.

Pardus, 551 U.S. 89, 94 (2007)). A court is “not bound to accept

as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

A court should dismiss a complaint if it does not contain

“enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

Plausibility exists “when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not

resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses.” Republican Party of N.C. v.

Martin, 980 F.2d 943, 952 (4th Cir. 1992).

III. FACTS

For purposes of analyzing Defendants’ amended motion to

dismiss, the Court assumes that Plaintiff’s asserted facts are

true. Plaintiff is a 56-year-old African American male. Compl.,

ECF No. 1, at ¶¶ 21, 23. He was a student at West Virginia

University in the spring of 2020. Id. ¶ 7. That semester, he was

enrolled in English 200, which was taught by Dr. Ryan. Id.

In March 2020, Dr. Ryan called Plaintiff into her office.

Id. Dr. Ryan told Plaintiff that she had received complaints that

he was pressuring some female students to be part of a short film.

Id. ¶ 10. She stated that a student complained to another

professor, and the student and professor subsequently reached out

to her. Id. ¶ 16. Plaintiff told Dr. Ryan that this was false

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

and that the students agreed to be part of his project. Id. ¶ 10.

Plaintiff, who is an actor and shoots his own films, told Dr. Ryan

that he saw talent in the female students. Id. ¶¶ 8, 10. Dr.

Ryan replied, “Well, let them use that talent for something else.”

Id. ¶ 10.

Around July 2020, Plaintiff requested an investigation into

this matter with the Office of Student Conduct. Id. ¶ 12. Carrie

Showalter and Jill Gibson from the Office of Student Conduct told

Plaintiff that no one had filed a complaint against him. Id. ¶ 13.

Around July 2020, Plaintiff contacted the Director of Equity

Assurance/Title IX Coordinator (Sexual Misconduct), James Goins

Jr. (“Goins”). Id. ¶ 14. Goins told Plaintiff that Dr. Ryan asked

Goins to investigate Plaintiff for sexual misconduct, but Goins

denied her request because Plaintiff’s actions did not constitute

sexual misconduct. Id.

At one point, Dr. Ryan read a Shakespeare poem to Plaintiff’s

class. Id. ¶ 18. The Shakespeare poem included sexual

connotations. Id. Dr. Ryan then asked the class to write a poem.

Id. She told Plaintiff, “[D]ue to the climate, you should not

read a poem with sexual innuendos.” Id. Plaintiff then had to

rewrite his poem. Id.

Based on these facts, Plaintiff asserts the following claims

against Defendants: (I) Denial of Procedural Due Process (42 U.S.C.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

§ 1983) and violation of the First Amendment (42 U.S.C. § 1983);

(II) Violation of 34 C.F.R. Part 110 – Age Discrimination; (III)

Violation of 34 C.F.R. Part 100 – Race Discrimination; and (IV)

Violation of 18 U.S.C. § 287 – False, Fictitious or Fraudulent

Claims.

IV. OBJECTIONS TO THE R&R

With respect to the R&R, Plaintiff objects to (1) the

Magistrate Judge’s finding that Plaintiff’s 42 U.S.C. § 1983 claims

should be dismissed; (2) the Magistrate Judge’s finding that

Plaintiff’s age discrimination claims should be dismissed; (3) the

Magistrate Judge’s finding that Plaintiff’s race discrimination

claim should be dismissed; and (4) the Magistrate Judge’s finding

that Plaintiff’s claim under 18 U.S.C. § 287 should be dismissed.

When reviewing a magistrate judge’s R&R, the Court must review

de novo only the portions to which an objection has been timely

made. 28 U.S.C. § 636(b)(1)(C). Otherwise, “the Court may adopt,

without explanation, any of the magistrate judge’s

recommendations” to which there are no objections. Dellarcirprete

v. Gutierrez, 479 F. Supp. 2d 600, 603–04 (N.D.W. Va. 2007) (citing

Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983)). Courts will

uphold portions of a recommendation to which no objection has been

made unless they are clearly erroneous. See Diamond v. Colonial

Life & Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005). As

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

such, the Court will review de novo all issues to which Plaintiff

has objected.

V. DISCUSSION

The Court finds that Plaintiff’s Complaint should be

dismissed as a matter of law. First, Plaintiff’s 42 U.S.C. § 1983

claims are barred by the Eleventh Amendment to the United States

Constitution. Second, Plaintiff failed to exhaust his

administrative remedies with respect to his age discrimination

claim. Third, Plaintiff failed to state a claim of race

discrimination and failed to name the proper defendant. Fourth

and finally, there is no private cause of action under 18 U.S.C.

§ 287.

A. Plaintiff’s 42 U.S.C. § 1983 claims are barred by the Eleventh

Amendment.

Plaintiff alleges that Defendants violated both his

procedural due process rights and his First Amendment rights.

These claims fail because Defendants are entitled to immunity under

the Eleventh Amendment to the United States Constitution.

The Eleventh Amendment provides, “The Judicial power of the

United States shall not be construed to extend to any suit in law

or equity, commenced or prosecuted against one of the United States

by Citizens of another State, or by Citizens or Subjects of any

Foreign State.” It is well-established that “an unconsenting State

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

is immune from suits brought in federal court by her own citizen

as well as by citizens of another state.” Port Auth. Trans-Hudson

Corp. v. Feeney, 495 U.S. 299, 304 (2009) (citation omitted).

Sovereign immunity also extends to state agencies, officials, and

other “arms of the State.” See Md. Stadium Auth. v. Ellerbe Becket

Inc., 407 F.3d 255, 262–63 (4th Cir. 2005); see also W. Va. Univ.

Bd. of Governors ex rel. W. Va. Univ. v. Rodriguez, 543 F. Supp.

2d 526, 531–32 (N.D.W. Va. 2008).

Courts have “almost universally” recognized that public state

universities, such as WVUBOG here, are “arms of the state” and

entitled to immunity. See Md. Stadium Auth. v. Ellerbe Becket

Inc., 407 F.3d 255, 262 (4th Cir. 2005); see also Rodriguez, 543

F. Supp. 2d at 531 n.3 (citing precedent from all 11 circuit courts

of appeal). Further, as a state official, Dr. Ryan is also

entitled to Eleventh Amendment immunity. See Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 71 (1989) (“[A] suit against a state

official in his or her official capacity is not a suit against the

official but rather is a suit against the official’s office. As

such, it is no different from a suit against the state itself.”

(citation omitted)).

While 42 U.S.C. § 1983 provides a federal cause of action for

alleged violations of an individual’s constitutional right, it

“does not abrogate” the Eleventh Amendment. Syl. Pt. 1, Quern v.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

Jordan, 440 U.S. 332 (1979). For these reasons, Defendants are

entitled to immunity. Defendants’ amended motion to dismiss is

GRANTED with respect to Plaintiff’s 42 U.S.C. § 1983 claims. His

procedural due process claim and First Amendment claim are

DISMISSED WITHOUT PREJUDICE.

B. Plaintiff failed to exhaust his administrative remedies for

his age discrimination claim.

Plaintiff asserts that Defendants discriminated against him

based on his age, in violation of the Age Discrimination Act of

1975 (the “ADA”). Because Plaintiff has failed to exhaust his

administrative remedies, this claim must be dismissed.

The ADA states that “no person in the United States shall, on

the basis of age, be excluded from participation in, be denied the

benefits of, or be subjected to discrimination under, any program

or activity receiving Federal financial assistance.” 42 U.S.C.

§ 6102. Before asserting an ADA claim, a claimant must exhaust

his administrative remedies. See id. § 6104(e)(2) (“No

action . . . shall be brought . . . if administrative remedies

have not been exhausted.”).

A claimant must “give notice by registered mail not less than

30 days prior to the commencement of th[e] action to the Secretary

of Health and Human Services, the Attorney General of the United

States, and the person against whom the action is directed.” Id.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

§ 6104(e)(1). The notice must “state the nature of the alleged

violation, the relief to be requested, the court in which the

action will be brought, and whether or not attorney’s fees are

being demanded in the event that the plaintiff prevails.” Id.

§ 6104(e)(2). The Department of Education requires all complaints

to be filed “within 180 days from the date the complainant first

had knowledge of the alleged discrimination.” 34 C.F.R.

§ 110.31(a).

Here, Plaintiff alleges that age discrimination occurred in

March 2020, when Dr. Ryan began “performing her own investigations

and accusing him of doing something wrong by asking female students

to be part of a film project[.]” Compl., ECF No. 1, at ¶ 21.

Plaintiff did not file this lawsuit until March 15, 2021. There

is no evidence that Plaintiff has exhausted his administrative

remedies. As such, Defendants’ amended motion to dismiss is

GRANTED with respect to Plaintiff’s age discrimination claim. The

age discrimination claim is DISMISSED WITHOUT PREJUDICE.

C. Plaintiff failed to state a claim of race discrimination.

Plaintiff argues that Defendants discriminated against him

based on his race, in violation of Title VI of the Civil Rights

Act (“Title VI”). Plaintiff has failed to plead factual content

that would allow the Court to draw the reasonable inference that

Defendants are liable for the misconduct alleged.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

Title VI provides, “No person in the United States shall, on

the ground of race, color, or national origin, be excluded from

participation in, be denied the benefits of, or be subjected to

discrimination under any program or activity receiving Federal

financial assistance.” 42 U.S.C. § 2000d. The regulations state

that this includes “discrimination under any program or activity

receiving Federal financial assistance from the Department of

Education.” 34 C.F.R. § 100.1. The purpose of Title VI is two-

fold: “First, Congress wanted to avoid the use of federal resources

to support discriminatory practices; second, it wanted to provide

individual citizens effective protection against those practices.”

Cannon v. Univ. of Chicago, 441 U.S. 677, 704 (1979).

To state a claim of Title VI discrimination, Plaintiff must

either provide direct evidence of discrimination or plead a prima

facie case under the McDonnell Douglas burden-shifting framework.

See Glenn v. Wells Fargo Bank, N.A., 710 F. App’x 574, 576–77 (4th

Cir. 2017); see also Middlebrooks v. Univ. of Md., 1999 WL 7860,

at *5 (4th Cir. Jan. 11, 1999) (unpublished). “Title VI authorizes

a private cause of action only for intentional discrimination based

on race, color, or national origin.” Miller v. Prince George’s

Cty. Gov’t, 778 F. App’x 261, 262 (4th Cir. Oct. 2, 2019) (mem)

(citing Franklin v. Gwinnett Cty. Pub. Sch., 503 U.S. 60, 70

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

(1992)). In a Title VI suit brought in the education context, the

Eighth Circuit has explained,

To establish a prima facie case, the plaintiff

must show: (1) “he is a member of a protected

class”; (2) “he suffered an adverse action at

the hands of defendants in pursuit of his

education”; (3) “he was qualified to continue

in pursuit of his education”; and (4) he was

treated differently from similarly situated

students outside his protected class.

Rowles v. Curators of Univ. of Miss., 983 F.3d 345, 355 (8th Cir.

2020) (citation omitted).

The Court agrees with the Magistrate Judge that Plaintiff’s

complaint does not include factual content that would prove a prima

facie case of Title VI race discrimination. Therefore, Defendants’

amended motion to dismiss is GRANTED with respect to this

allegation. Plaintiff’s race discrimination claim is DISMISSED

WITHOUT PREJUDICE.

D. There is no private cause of action under 18 U.S.C. § 287.

Plaintiff argues that Defendants have violated 18 U.S.C.

§ 287. Because this is a criminal statute and does not create a

private cause of action, this claim must be dismissed.

As the Supreme Court has explained, “a private citizen lacks

a judicially cognizable interest in the prosecution or

nonprosecution of another.” Linda R.S. v. Richard D., 410 U.S.

614, 619 (1973). The Fourth Circuit has also explicitly found

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

that there is no constitutional right “as a member of the public

at large and as a victim to have . . . defendants criminally

prosecuted.” Sattler v. Johnson, 857 F.2d 224, 227 (4th Cir.

1988).

Here, Plaintiff asserts that Dr. Ryan “chose to

defend . . . false accusations against Plaintiff by calling

Plaintiff into her office to conduct her own investigation.

Plaintiff was not given a chance to defend himself against these

false accusations and to clear his name.” Compl., ECF No. 1, at

¶ 25. Plaintiff argues that these accusations were not true, and

as a result, Dr. Ryan violated 18 U.S.C. § 287. Id.

Congress has stated the following in 18 U.S.C. § 287:

Whoever makes or presents to any person or

officer in the civil, military, or naval

service of the United States, or to any

department or agency thereof, any claim upon

or against the United States, or any

department or agency thereof, knowing such

claim to be false, fictitious, or fraudulent,

shall be imprisoned not more than five years

and shall be subject to a fine in the amount

provided in this title.

This is a criminal statute for which Congress has not provided a

private cause of action. Accordingly, Defendants’ amended motion

to dismiss with respect to Plaintiff’s 18 U.S.C. § 287 claim is

GRANTED, and this claim is DISMISSED WITH PREJUDICE.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

VI. CONCLUSION

For the reasons discussed above, the Court ORDERS the

following:

 The R&R is ADOPTED to the extent that it is consistent

with this Memorandum Opinion and Order [ECF No. 19];

 Plaintiff’s motion for an extension of time in which

to file objections is GRANTED [ECF No. 21];

 Plaintiff’s objections to the R&R are FILED and

OVERRULED [ECF No. 21];

 Plaintiff’s procedural due process claim under 42

U.S.C. § 1983 is DISMISSED WITHOUT PREJUDICE;

 Plaintiff’s First Amendment claim under 42 U.S.C.

§ 1983 is DISMISSED WITHOUT PREJUDICE;

 Plaintiff’s age discrimination claim is DISMISSED

WITHOUT PREJUDICE;

 Plaintiff’s race discrimination claim is DISMISSED

WITHOUT PREJUDICE;

 Plaintiff’s 18 U.S.C. § 287 claim is DISMISSED WITH

PREJUDICE;

 The amended motion to dismiss is GRANTED [ECF No. 11];

 The motion to dismiss is DENIED AS MOOT [ECF No. 9];

and

 This action is DISMISSED and STRICKEN from the Court’s

active docket.

It is so ORDERED.

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION,

OVERRULING OBJECTIONS, AND GRANTING AMENDED MOTION TO DISMISS

The Clerk is DIRECTED to transmit copies of this Memorandum

Opinion and Order to counsel of record via email and to the pro se

Plaintiff via certified mail, return receipt requested, at the

last address shown on the docket. The Clerk is further DIRECTED

to entry a separate order of judgment.

DATED: March 17, 2022

/s/ Thomas S. Kleeh

THOMAS S. KLEEH

UNITED STATES DISTRICT JUDGE