# Young v. West Virginia University

> District Court, N.D. West Virginia · March 17, 2022

URL: https://www.frixlaw.com/law-library/cases/10726200

## Case

- **Court:** District Court, N.D. West Virginia
- **Decided:** March 17, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10726200. Public record. Not legal advice.