Petition for Writ of Certiorari — The Ohio State University, Petitioner v. Edward Gonzales, et al.
Supreme Court briefMar 14, 2023
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No. ______
In the
Supreme Court of the United States
——————————
THE OHIO STATE UNIVERSITY,
Petitioner,
v.
EDWARD GONZALES, ET AL.,
Respondents.
——————————
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
——————————
PETITION FOR A WRIT OF CERTIORARI
——————————
DAVE YOST
Attorney General
OHIO ATTORNEY
GENERAL’S OFFICE
30 E. Broad Street
17th Floor
Columbus, OH 43215
MICHAEL H. CARPENTER
TIMOTHY R. BRICKER
DAVID J. BARTHEL
CARPENTER LIPPS LLP
280 North High Street
Suite 1300
Columbus, OH 43215
GREGORY G. GARRE
Counsel of Record
CHARLES S. DAMERON
BLAKE E. STAFFORD
LIA R. CATTANEO
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
Counsel for Petitioner
[Additional Captions Listed on Inside Cover]
THE OHIO STATE UNIVERSITY,
Petitioner,
v.
JOHN DOE 174, ET AL.,
Respondents.
——————————
THE OHIO STATE UNIVERSITY,
Petitioner,
v.
JOHN DOE 195,
Respondent.
——————————
THE OHIO STATE UNIVERSITY,
Petitioner,
v.
JOHN DOE 162,
Respondent.
——————————
QUESTION PRESENTED
Whether, or to what extent, a claim under Title IX
of the Education Amendments of 1972, 20 U.S.C.
§§ 1681-1688, accrues after the date on which the
alleged injury occurred.
ii
PARTIES TO THE PROCEEDING
Petitioner (defendant-appellee below) is The Ohio
State University.
Respondents (plaintiffs-appellants below) are:
• Edward Gonzales; John Antognoli; Kent
Kilgore; Roger Beedon; Adam Plouse; Daniel
Ritchie; Michael Schyck; Dr. Mark Chrystal;
Joel Davis; John Doe 1; John Doe 2; John Doe
4; John Doe 5; John Doe 6; John Doe 8; John
Doe 10; John Doe 11; John Doe 12; John Doe
13; John Doe 14; John Doe 15; John Doe 17;
John Doe 19; John Doe 21; John Doe 22; John
Doe 23; John Doe 24; John Doe 25; John Doe
27; John Doe 29; John Doe 30; John Doe 31;
John Doe 32; John Doe 33; John Doe 35; John
Doe 36; John Doe 37; John Doe 38; John Doe
39; John Doe 40; John Doe 41; John Doe 42;
John Doe 43; John Doe 44; John Doe 45; John
Doe 46; John Doe 48; John Doe 50; John Doe
51; John Doe 53; John Doe 56; John Doe 57;
John Doe 58; John Doe 59; John Doe 61; John
Doe 62; John Doe 64; John Doe 69; John Doe
75; John Doe 77; John Doe 85; John Doe 86;
John Doe 88; John Doe 89; John Doe 90; John
Doe 91; and John Doe 92 (plaintiffs-appellants
in the court of appeals in No. 21-3972);
• Rocky Ratliff (plaintiff-appellant in the court of
appeals in No. 21-3974);
• Eric Smith; Mark Coleman; William Knight;
Jack Cahill; Scott Overholt; Elmer Long; Ryan
Henry; Michael Glane; Christopher Perkins;
Michael Caldwell; Thomas Roehlig; Brian
Roskovich; Rick Monge; Thomas Lisy;
Anastacio Tito Vazquez, Jr.; John MacDonald,
iii
Jr.; Maroon Mondalek; Leo Disabato; Peter
Nathanson; Jeffrey Ladrow; Anthony Sentieri;
John Doe 1; John Doe 2; John Doe 3; John Doe
4; John Doe 5; John Doe 6; John Doe 7; John
Doe 8; John Doe 9; John Doe 10; John Doe 11;
John Doe 12; John Doe 13; John Doe 14; John
Doe 15; John Doe 17; John Doe 18; and John
Doe 19 (plaintiffs-appellants in the court of
appeals in No. 21-3982);
• Michael Alf; Gary Till; Allen Novakowski;
Chris Armstrong; John Doe 93; John Doe 94;
John Doe 95; John Doe 96; John Doe 97; John
Doe 99; John Doe 100; and John Doe 101
(plaintiffs-appellants in the court of appeals in
No. 21-4070);
• John Doe 174; John Doe 176; John Doe 182;
John Doe 183; and Jane Doe 1 (plaintiffsappellants in the court of appeals in No. 214109);
• John Doe 195 (plaintiff-appellant in the court
of appeals in No. 21-4116);
• John Doe 162 (plaintiff-appellant in the court
of appeals in No. 21-4121); and
• Michael Canales and John Doe 20 (plaintiffsappellants in the court of appeals in No. 214128).
John Doe 98 was a plaintiff-appellant in the court
of appeals in No. 21-4070 but dismissed his appeal.
The following parties were plaintiffs in the district
court but did not participate in the proceedings on
appeal: Brian Garrett; John “Hunter” Shepard; John
Doe 7; John Doe 9; John Doe 26; John Doe 28; John
Doe 47; John Doe 49; John Doe 52; John Doe 54; John
Doe 55; John Doe 60; John Doe 63; John Doe 65; John
iv
Doe 66; John Doe 67; John Doe 68; John Doe 70; John
Doe 71; John Doe 72; John Doe 73; John Doe 74; John
Doe 76; John Doe 78; John Doe 79; John Doe 80; John
Doe 81; John Doe 82; John Doe 83; John Doe 84; and
John Doe 87 (plaintiffs in the district court in No. 18cv-692); Nicholas Nutter; Dunyasha Yetts; Adam
DiSabato; Michael Rodriguez; Matthew Dalgleish;
Vincent DiSabato; and John Doe 16 (plaintiffs in the
district court in No. 19-cv-2462); John Doe 151; John
Doe 152; John Doe 153; John Doe 154; John Doe 155;
John Doe 156; John Doe 157; John Doe 158; John Doe
159; John Doe 160; John Doe 161; John Doe 163; John
Doe 164; John Doe 165; and John Doe 166 (plaintiffs
in the district court in No. 20-cv-3817); John Doe 172;
John Doe 173; John Doe 175; John Doe 177; John Doe
178; John Doe 179; John Doe 180; John Doe 181; John
Doe 184; John Doe 185; John Doe 186; John Doe 187;
John Doe 188; John Doe 189; John Doe 190; and John
Doe 191 (plaintiffs in the district court in No. 21-cv2121); and John Doe 192; John Doe 193; John Doe
194; John Doe 196; John Doe 197; John Doe 198; John
Doe 199; John Doe 200; John Doe 201; John Doe 202;
John Doe 203; John Doe 204; John Doe 205; John Doe
206; John Doe 207; John Doe 208; John Doe 209; John
Doe 210; John Doe 211; John Doe 212; John Doe 213;
John Doe 214; John Doe 215; John Doe 216; and John
Doe 217 (plaintiffs in the district court in No. 21-cv2527).
RELATED PROCEEDINGS
United States Court of Appeals (6th Cir.):
Garrett v. Ohio State Univ., No. 21-3972 (Feb. 15,
2023)
Ratliff v. Ohio State Univ., No. 21-3974 (Feb. 15,
2023)
v
Nutter v. Ohio State Univ., No. 21-3982 (Feb. 15,
2023)
Alf v. Ohio State Univ., No. 21-4070 (Feb. 15,
2023)
Doe 174 v. Ohio State Univ., No. 21-4109 (Dec. 16,
2022)
Doe 195 v. Ohio State Univ., No. 21-4116 (Dec. 16,
2022)
Doe 162 v. Ohio State Univ., No. 21-4121 (Dec. 16,
2022)
Canales v. Ohio State Univ., No. 21-4128 (Feb. 15,
2023)
United States District Court (S.D. Ohio):
Garrett v. Ohio State Univ., No. 18-cv-692 (Sept.
22, 2021)
Ratliff v. Ohio State Univ., No. 19-cv-4746 (Sept.
22, 2021)
Nutter v. Ohio State Univ., No. 19-cv-2462 (Sept.
22, 2021)
Doe 151 v. Ohio State Univ., No. 20-cv-3817 (Oct.
25, 2021)
Doe 172 v. Ohio State Univ., No. 21-cv-2121 (Oct.
25, 2021)
Doe 192 v. Ohio State Univ., No. 21-cv-2527 (Oct.
25, 2021)
Alf v. Ohio State Univ., No. 21-cv-2542 (Oct. 25,
2021)
Canales v. Ohio State Univ., No. 21-cv-2562 (Oct.
25, 2021)
vi
TABLE OF CONTENTS
Page
QUESTION PRESENTED ......................................... i
PARTIES TO THE PROCEEDING ........................... ii
RELATED PROCEEDINGS ..................................... iv
TABLE OF AUTHORITIES ..................................... ix
OPINIONS BELOW ....................................................1
JURISDICTION ..........................................................1
STATUTORY PROVISIONS INVOLVED .................2
STATEMENT OF THE CASE ....................................2
REASONS FOR GRANTING THE PETITION .........7
CONCLUSION ..........................................................10
APPENDIX
Opinion of the United States Court of Appeals
for the Sixth Circuit, Garrett v. Ohio State
University, Nos. 21-3972, 21-3974, 213982, 21-4070, and 21-4128, 60 F.4th 359
(6th Cir. Feb. 15, 2023) .......................................1a
Opinion of the United States Court of Appeals
for the Sixth Circuit, Doe 174 v. Ohio State
University, No. 21-4109, 2022 WL
17730528 (6th Cir. Dec. 16, 2022) ....................22a
Opinion of the United States Court of Appeals
for the Sixth Circuit, Doe 195 v. Ohio State
University, No. 21-4116, 2022 WL
17730532 (6th Cir. Dec. 16, 2022) ....................25a
vii
TABLE OF CONTENTS—Continued
Page
Opinion of the United States Court of Appeals
for the Sixth Circuit, Doe 162 v. Ohio State
University, No. 21-4121, 2022 WL
17730529 (6th Cir. Dec. 16, 2022) ....................28a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Garrett v. Ohio State University, No.
18-cv-692, 561 F. Supp. 3d 747 (S.D. Ohio
Sept. 22, 2021) ..................................................31a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Nutter v. Ohio State University, No.
19-cv-2462, 2021 WL 7186149 (S.D. Ohio
Sept. 22, 2021) ..................................................56a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Ratliff v. Ohio State University, No.
19-cv-4746, 2021 WL 7186198 (S.D. Ohio
Sept. 22, 2021) ..................................................59a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Doe 151 v. Ohio State University, No.
20-cv-3817, 2021 WL 7186267 (S.D. Ohio
Oct. 25, 2021) ....................................................74a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Doe 172 v. Ohio State University, No.
21-cv-2121, 2021 WL 7186246 (S.D. Ohio
Oct. 25, 2021) ....................................................76a
viii
TABLE OF CONTENTS—Continued
Page
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Doe 192 v. Ohio State University, No.
21-cv-2527, 2021 WL 7186262 (S.D. Ohio
Oct. 25, 2021) ....................................................78a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Alf v. Ohio State University, No. 21cv-2542, 2021 WL 7186208 (S.D. Ohio Oct.
25, 2021) ............................................................80a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Canales v. Ohio State University, No.
21-cv-2562, 2021 WL 7186260 (S.D. Ohio
Oct. 25, 2021) ....................................................82a
20 U.S.C. § 1681 ......................................................84a
20 U.S.C. § 1687 ......................................................89a
ix
TABLE OF AUTHORITIES
Page(s)
CASES
Gebser v. Lago Vista Independent School
District,
524 U.S. 274 (1998) ................................................3
King-White v. Humble Independent School
District,
803 F.3d 754 (5th Cir. 2015)..................................7
Moxley v. Ohio State University,
No. 21-cv-3838, 2021 WL 7186269 (S.D.
Ohio Oct. 25, 2021) ................................................4
Rotella v. Wood,
528 U.S. 549 (2000) ................................................8
Rotkiske v. Klemm,
140 S. Ct. 355 (2019)..............................................8
Snyder-Hill v. Ohio State University,
No. 18-cv-736, 2021 WL 7186148 (S.D.
Ohio Sept. 22, 2021)...............................................4
Snyder-Hill v. Ohio State University,
48 F.4th 686 (6th Cir. 2022) ...................... 4, 5, 7, 8
Snyder-Hill v. Ohio State University,
54 F.4th 963 (6th Cir. 2022) ..........................5, 7, 9
Varnell v. Dora Consolidated School District,
756 F.3d 1208 (10th Cir. 2014)..............................7
Wallace v. Kato,
549 U.S. 384 (2007) ................................................8
STATUTES
20 U.S.C. §§ 1681-1688 ...............................................2
x
TABLE OF AUTHORITIES—Continued
Page(s)
28 U.S.C. § 1254(1)......................................................2
OTHER AUTHORITIES
Caryn Trombino & Markus Funk, Perkins
Coie LLP, Report of the Independent
Investigation: Sexual Abuse Committed by
Dr. Strauss at The Ohio State University
(May 15, 2019),
https://compliance.osu.edu/assets/site/pdf/
Revised_report.pdf .............................................2, 3
Sup. Ct. R. 12.4 ...........................................................1
PETITION FOR A WRIT OF CERTIORARI
The Ohio State University respectfully petitions
this Court for a writ of certiorari to review the
judgments of the United States Court of Appeals for
the Sixth Circuit in these cases. Pursuant to this
Court’s Rule 12.4, Ohio State is filing a “single
petition for a writ of certiorari” for these cases because
the judgments below are from “the same court and
involve identical or closely related questions.”
OPINIONS BELOW
The opinion of the court of appeals in Nos. 213972, 21-3974, 21-3982, 21-4070, and 21-4128 (App.
1a-21a) is reported at 60 F.4th 359. The relevant
opinions of the district court in those cases (App. 31a73a, 80a-83a) are available at 561 F. Supp. 3d 747,
2021 WL 7186198, 2021 WL 7186149, 2021 WL
7186208, and 2021 WL 7186260.
The opinion of the court of appeals in No. 21-4109
(App. 22a-24a) is available at 2022 WL 17730528.
The opinion of the district court in that case (App.
76a-77a) is available at 2021 WL 7186246.
The opinion of the court of appeals in No. 21-4116
(App. 25a-27a) is available at 2022 WL 17730532.
The opinion of the district court in that case (App.
78a-79a) is available at 2021 WL 7186262.
The opinion of the court of appeals in No. 21-4121
(App. 28a-30a) is available at 2022 WL 17730529.
The opinion of the district court in that case (App.
74a-75a) is available at 2021 WL 7186267.
JURISDICTION
The court of appeals entered its judgments in Nos.
21-4109, 21-4116, and 21-4121 on December 16, 2022;
and its judgments in Nos. 21-3972, 21-3974, 21-3982,
2
21-4070, and 21-4128 on February 15, 2023. This
Court has jurisdiction under 28 U.S.C. § 1254(1).
STATUTORY PROVISIONS INVOLVED
Pertinent statutory provisions of Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 16811688, are reproduced at App. 84a-90a.
STATEMENT OF THE CASE
This petition presents the same threshold claimaccrual question that is presented by the petition in
Ohio State University v. Snyder-Hill (filed March 14,
2023). This petition should therefore be held pending
the Court’s decision in Snyder-Hill.
1. The background underlying these cases is set
forth in detail in the Snyder-Hill petition. In short,
these cases are among several lawsuits filed against
Ohio State by plaintiffs alleging that they were
sexually abused by Richard Strauss, a physician
employed by Ohio State in various capacities between
1978 and 1998. See App. 3a. During that time,
Strauss sexually abused numerous young men, the
vast majority of them Ohio State students and
student-athletes. Id. Following multiple reports of
abuse, Ohio State placed Strauss on administrative
leave in 1996, and he ended his employment with
Ohio State in 1998. Id. He died in 2005.
In April 2018, after a former Ohio State wrestler
reported to the University that Strauss had abused
him decades earlier, Ohio State launched an external,
independent investigation helmed by Perkins Coie
LLP. Id. A year later, in May 2019, Ohio State
publicly released a 182-page report prepared by
Perkins Coie summarizing the investigation and its
findings. See Caryn Trombino & Markus Funk,
Perkins Coie LLP, Report of the Independent
3
Investigation: Sexual Abuse Committed by Dr.
Strauss at The Ohio State University (May 15, 2019).1
The report found that Strauss sexually abused at
least 177 men between 1978 and 1998. Id. at 1, 43.
The report also found that, despite “persisten[t],
serious[], and regular[]” complaints, “no meaningful
action was taken by the University to investigate or
address the concerns until January 1996.” Id. at 3.
2. Between 2018 and 2021, more than 500
plaintiffs—nearly all of whom were former students
who had graduated from or left Ohio State decades
earlier—filed Title IX claims against Ohio State
alleging that they were abused by Strauss between
1978 and 1998, and that Ohio State was deliberately
indifferent to Strauss’s abuse. See App. 5a; Gebser v.
Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290-91
(1998) (interpreting Title IX’s implied right of action
to permit claims against a Title IX educational
institution for its “actual knowledge” of and
“deliberate indifference” to “sexual harassment” of a
student).
a. In each case, the district court dismissed the
Title IX claims as untimely, based on the applicable
two-year statute of limitations borrowed from Ohio
law. App. 7a. In its decision in Garrett v. Ohio State
University, the district court explained that, with
respect to the accrual of the plaintiffs’ Title IX claims,
the claims are untimely under both the “occurrence
rule,” under which the limitations period begins to
run when the injury occurs; and the “discovery rule,”
under which the limitations period begins to run
when the plaintiff discovers the injury. App. 37a-46a.
1
https://compliance.osu.edu/assets/site/pdf/Revised_report.pdf.
4
Under the “occurrence rule,” the court explained,
the claims accrued at the latest when the plaintiffs
left the University (between 1978 and 1999), as that
is “the latest moment they were deprived of access to
educational opportunities or benefits provided by
Ohio State as a result of Ohio State’s deliberate
indifference.” Id. at 41a-42a. In addition, the court
held that, even if the discovery rule applied, it would
not change the date of accrual, because the plaintiffs
were “aware of” their injuries when the injuries
occurred. Id. at 42a-49a.
The district court applied its reasoning in Garrett
in dismissing the other suits as well. See id. at 56a83a; Snyder-Hill v. Ohio State Univ., No. 18-cv-736,
2021 WL 7186148 (S.D. Ohio Sept. 22, 2021); Moxley
v. Ohio State Univ., No. 21-cv-3838, 2021 WL 7186269
(S.D. Ohio Oct. 25, 2021). Several plaintiffs appealed.
b. In Snyder-Hill v. Ohio State University, 48
F.4th 686 (6th Cir. 2022), a divided Sixth Circuit
panel reversed the district court’s dismissal in two
suits concerning Strauss’s abuse (Snyder-Hill and
Moxley). The panel majority held that the accrual of
the Title IX claims is governed by the “discovery rule,”
rather than the “occurrence rule.” Id. at 698-99. The
majority then held that, under the discovery rule, a
Title IX claim accrues only when the plaintiff “knows
or has reason to know that they were injured and that
the defendant [educational institution] caused their
injury” through its “deliberate indifference.” Id. at
704. Applying that rule, the majority held that, at the
time of their injuries, the plaintiffs may have “lacked
reason to know . . . the underlying facts about Ohio
State’s alleged deliberate indifference.” Id. at 704-07.
Judge Guy dissented from the panel opinion,
explaining that the majority’s approach to claim-
5
accrual for Title IX claims exacerbates a “circuit
split,” conflicts with precedent from this Court, and
ultimately “renders meaningless any limitations
provision for Title IX claims.” Id. at 711-19.
The Sixth Circuit denied panel rehearing and
rehearing en banc, over dissents from Judges Guy,
Thapar, Readler, and Bush. See Snyder-Hill v. Ohio
State Univ., 54 F.4th 963 (6th Cir. 2022). Ohio State
has filed a petition for certiorari in Snyder-Hill.
3. This petition seeks certiorari in several
Strauss-related cases subsequently decided by the
Sixth Circuit on the basis of its Snyder-Hill decision.
These cases, which present the same claim-accrual
issue presented in Snyder-Hill, fall into two
categories.
a. The first category consists of five suits that
were consolidated for purposes of appeal: Garrett v.
Ohio State University, No. 21-3972 (6th Cir.); Ratliff
v. Ohio State University, No. 21-3974 (6th Cir.);
Nutter v. Ohio State University, No. 21-3982 (6th
Cir.); Alf v. Ohio State University, No. 21-4070 (6th
Cir.); and Canales v. Ohio State University, No. 214128 (6th Cir.).
These lawsuits were filed between 2018 and 2021:
Garrett was filed in July 2018, Nutter was filed in
June 2019, Ratliff was filed in October 2019, Alf was
filed in May 2021, and Canales was filed in May 2021.
See App. 5a. The plaintiffs in each case, all of whom
are former Ohio State students or student-athletes,
asserted Title IX claims against Ohio State based on
allegations that they were abused by Strauss between
1978 and 1998. Id. And as noted above, the district
court dismissed each of these cases as untimely,
concluding that the Title IX claims are barred by the
6
applicable two-year limitations period. Id. at 33a-55a
(Garrett); id. at 56a-58a (Nutter); id. at 59a-73a
(Ratliff); id. at 80a-81a (Alf); id. at 82a-83a (Canales).
On appeal, the Sixth Circuit vacated the district
court’s decisions and remanded in light of its SnyderHill opinion, explaining that “[t]he holding in SnyderHill applies equally to these plaintiffs’ claims.” App.
2a; see id. at 7a-11a.2
b. The second category consists of three
additional cases: Doe 162 v. Ohio State University,
No. 21-4121 (6th Cir.); Doe 174 v. Ohio State
University, No. 21-4109 (6th Cir.); and Doe 195 v.
Ohio State University, No. 21-4116 (6th Cir.).
These lawsuits were filed in 2020 and 2021: Doe
162 was filed in July 2020, Doe 174 was filed in April
2021, and Doe 195 was filed in May 2021.3 As in the
other cases, the plaintiffs in these cases asserted Title
IX claims against Ohio State based on allegations
that they were abused by Strauss between 1978 and
1998. And, as in the other cases, the district court
dismissed these cases on the ground that the Title IX
claims are untimely. App. 74a-79a.
On appeal, the Sixth Circuit issued three
materially identical opinions in which it vacated the
district court’s decisions and remanded in light of its
Snyder-Hill opinion. Id. at 22a-30a.
2
The Sixth Circuit also affirmed the district court’s dismissal
of certain plaintiffs’ retaliation claims and the district court’s
denial of plaintiffs’ motions for recusal and transfer of venue.
App. 11a-21a. Those rulings are not at issue in this petition.
3
See Does 151-166 v. Ohio State Univ., No. 20-cv-3817 (S.D.
Ohio filed July 29, 2020); Does 172-191 v. Ohio State Univ., No.
21-cv-2121 (S.D. Ohio filed Apr. 28, 2021); Does 192-217 v. Ohio
State Univ., No. 21-cv-2527 (S.D. Ohio filed May 14, 2021).
7
REASONS FOR GRANTING THE PETITION
This petition presents the same threshold
question presented in the petition in Ohio State
University v. Snyder-Hill: Whether, or to what
extent, a Title IX claim accrues after the date on
which the alleged injury occurred. Because that
question is the subject of a “circuit split,” and because
the Sixth Circuit’s answer to that question in SnyderHill contravenes this Court’s precedent in a way that
“effectively nullifies any statute of limitations for
Title IX claims based on sexual harassment,” this
Court’s review is warranted. 48 F.4th at 709, 712
(Guy, J., dissenting); see also Snyder-Hill, 54 F.4th at
971 (Readler, J., joined by Bush, J., dissenting from
denial of rehearing en banc) (urging this Court’s
review). This Court should therefore grant the
petition in Snyder-Hill and hold this petition pending
the Court’s disposition in that case.
1. As explained in the Snyder-Hill petition, the
question presented necessitates this Court’s review.
First, the circuits are divided over the applicable
rule of accrual for Title IX claims. Snyder-Hill Pet.
13-17. The Tenth Circuit has held that the standard
occurrence rule governs the accrual of Title IX claims,
under which the limitations period begins to run
when the injury occurs. Varnell v. Dora Consol. Sch.
Dist., 756 F.3d 1208, 1215-17 (10th Cir. 2014). Other
circuits apply a discovery rule, which delays accrual
until “‘the plaintiff becomes aware that he has
suffered an injury or has sufficient information to
know that he has been injured.’” King-White v.
Humble Indep. Sch. Dist., 803 F.3d 754, 762 (5th Cir.
2015) (citation omitted). In Snyder-Hill, the Sixth
Circuit staked out a new position by “adopt[ing] an
8
injury-and-deliberate-indifference discovery rule,” 48
F.4th at 711 (Guy, J., dissenting), which delays
accrual until the plaintiff “knows or has reason to
know that they were injured and that the
[educational institution] caused their injury” through
its “deliberate indifference,” id. at 704 (majority op.)
(emphasis added). That three-way conflict warrants
this Court’s review.
Second, the Sixth Circuit’s approach is
fundamentally misguided. Snyder-Hill Pet. 17-26.
This Court has repeatedly stressed that the
occurrence rule—not the discovery rule—is the
“standard rule” of accrual that governs federal claims
absent unambiguous statutory text to the contrary.
Wallace v. Kato, 549 U.S. 384, 388 (2007) (citation
omitted); see, e.g., Rotkiske v. Klemm, 140 S. Ct. 355,
360 (2019). The Sixth Circuit directly contravened
those decisions by adopting a discovery rule for Title
IX claims without any statutory directive to do so.
Moreover, even if the discovery rule could apply to
Title IX claims, this Court has been “emphatic” that
“discovery of the injury, not discovery of the other
elements of a claim, is what starts the clock.” Rotella
v. Wood, 528 U.S. 549, 555 (2000). The Sixth Circuit
flouted that admonition as well by delaying accrual
until the plaintiff “discovers” the injury and the
educational institution’s deliberate indifference.
Third, the question of claim-accrual is
exceptionally important. Snyder-Hill Pet. 26-29. The
approach adopted by the Sixth Circuit in Snyder-Hill
defeats the vital objectives served by statutes of
limitations. And it will perversely discourage schools
from undertaking independent and transparent
investigations as to past misconduct. Furthermore,
the federal courts’ confusion and division over the
9
accrual date for Title IX claims is intolerable “in view
of the ‘federal interests in uniformity, certainty, and
the minimization of unnecessary litigation’
surrounding statutes of limitations.” Snyder-Hill, 54
F.4th at 977 (Readler, J., dissenting) (citation
omitted). And litigation spawned by the Sixth
Circuit’s flawed ruling ultimately will divert
resources from educational programs and activities.
Ohio State condemns the reprehensible conduct
alleged in these lawsuits, has committed substantial
resources to preventing and addressing sexual
misconduct on campus, and is a fundamentally
different university today than it was 25 years ago.
But the question presented is purely legal and thus
transcends the particular circumstances alleged here.
This Court’s resolution of that question is vitally
important for any educational institution subject to
Title IX.
2. The Sixth Circuit held below that its decision
in Snyder-Hill dictated the outcome in these cases.
See supra at 5-6. Accordingly, this Court should grant
the petition in Snyder-Hill and hold this petition
pending the decision in Snyder-Hill. Doing so would
enable the Court to fully decide all aspects of the
claim-accrual issue—which was extensively debated
by the parties and the Sixth Circuit judges in SnyderHill—while minimizing the potential for unnecessary
duplication in briefing and argument if the Court
were to grant both petitions and consolidate the cases
for merits review. If the Court reverses or vacates in
Snyder-Hill, the Court should grant this petition,
vacate the decisions below, and remand for further
proceedings in light of that disposition.
10
CONCLUSION
The petition for a writ of certiorari should be held
pending the Court’s disposition of the petition in Ohio
State University v. Snyder-Hill (filed March 14, 2023).
If the Court grants certiorari in Snyder-Hill, this
petition should be held pending a decision in that case
and then disposed of as is appropriate. Alternatively,
the petition should be granted.
Respectfully submitted,
DAVE YOST
Attorney General
OHIO ATTORNEY
GENERAL’S OFFICE
30 E. Broad Street
17th Floor
Columbus, OH 43215
MICHAEL H. CARPENTER
TIMOTHY R. BRICKER
DAVID J. BARTHEL
CARPENTER LIPPS LLP
280 North High Street
Suite 1300
Columbus, OH 43215
GREGORY G. GARRE
Counsel of Record
CHARLES S. DAMERON
BLAKE E. STAFFORD
LIA R. CATTANEO
LATHAM & WATKINS LLP
555 Eleventh Street, NW
Suite 1000
Washington, DC 20004
(202) 637-2207
gregory.garre@lw.com
Counsel for Petitioner
March 14, 2023
APPENDIX
TABLE OF CONTENTS
Page
Opinion of the United States Court of Appeals
for the Sixth Circuit, Garrett v. Ohio State
University, Nos. 21-3972, 21-3974, 213982, 21-4070, and 21-4128, 60 F.4th 359
(6th Cir. Feb. 15, 2023) .......................................1a
Opinion of the United States Court of Appeals
for the Sixth Circuit, Doe 174 v. Ohio State
University, No. 21-4109, 2022 WL
17730528 (6th Cir. Dec. 16, 2022) ....................22a
Opinion of the United States Court of Appeals
for the Sixth Circuit, Doe 195 v. Ohio State
University, No. 21-4116, 2022 WL
17730532 (6th Cir. Dec. 16, 2022) ....................25a
Opinion of the United States Court of Appeals
for the Sixth Circuit, Doe 162 v. Ohio State
University, No. 21-4121, 2022 WL
17730529 (6th Cir. Dec. 16, 2022) ....................28a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Garrett v. Ohio State University, No.
18-cv-692, 561 F. Supp. 3d 747 (S.D. Ohio
Sept. 22, 2021) ..................................................31a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Nutter v. Ohio State University, No.
19-cv-2462, 2021 WL 7186149 (S.D. Ohio
Sept. 22, 2021) ..................................................56a
ii
TABLE OF CONTENTS—Continued
Page
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Ratliff v. Ohio State University, No.
19-cv-4746, 2021 WL 7186198 (S.D. Ohio
Sept. 22, 2021) ..................................................59a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Doe 151 v. Ohio State University, No.
20-cv-3817, 2021 WL 7186267 (S.D. Ohio
Oct. 25, 2021) ....................................................74a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Doe 172 v. Ohio State University, No.
21-cv-2121, 2021 WL 7186246 (S.D. Ohio
Oct. 25, 2021) ....................................................76a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Doe 192 v. Ohio State University, No.
21-cv-2527, 2021 WL 7186262 (S.D. Ohio
Oct. 25, 2021) ....................................................78a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Alf v. Ohio State University, No. 21cv-2542, 2021 WL 7186208 (S.D. Ohio Oct.
25, 2021) ............................................................80a
Opinion and Order of the United States
District Court for the Southern District of
Ohio, Canales v. Ohio State University, No.
21-cv-2562, 2021 WL 7186260 (S.D. Ohio
Oct. 25, 2021) ....................................................82a
iii
TABLE OF CONTENTS—Continued
Page
20 U.S.C. § 1681 ......................................................84a
20 U.S.C. § 1687 ......................................................89a
1a
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
Nos. 21-3972/3974/3982/4070/4128
BRIAN GARRETT; NICHOLAS NUTTER, et al.,*
Plaintiffs,
EDWARD GONZALES, JOHN ANTOGNOLI, KENT
KILGORE, ROGER BEEDON, ADAM PLOUSE, DANIEL
RITCHIE, MICHAEL SCHYCK, DR. MARK CHRYSTAL,
JOEL DAVIS, and JOHN DOES 1–2, 4–6, 8, 10–15, 17,
19, 21–25, 27, 29–33, 35–46, 48, 50–51, 53, 56–59, 61,
62, 64, 69, 75, 77, 85–86, and 88–92, individually and
on behalf of all others similarly situated (21-3972);
ROCKY RATLIFF (21-3974); ERIC SMITH, MARK
COLEMAN, WILLIAM KNIGHT, JACK CAHILL, SCOTT
OVERHOLT, ELMER LONG, RYAN HENRY, MICHAEL
GLANE, CHRISTOPHER PERKINS, MICHAEL CALDWELL,
THOMAS ROEHLIG, BRIAN ROSKOVICH, RICK MONGE,
THOMAS LISY, ANASTACIO TITO VAZQUEZ, JR., JOHN
MACDONALD, JR.; MAROON MONDALEK, LEO
DISABATO, PETER NATHANSON, JEFFREY LADROW,
ANTHONY SENTIERI, and JOHN DOES 1–15 and 17–19
(21-3982); MICHAEL ALF, GARY TILL, ALLEN
NOVAKOWSKI; CHRIS ARMSTRONG, AND JOHN DOES
93–97 and 99–101, individually and on behalf of all
others similarly situated (21-4070); MICHAEL
CANALES and JOHN DOE 20 (21-4128),
Plaintiffs-Appellants,
*
Brian Garrett was the lead plaintiff in 18-cv-00692, the
underlying case to appeal 21-3972. Nicholas Nutter was the lead
plaintiff in 19-cv-02462, the underlying case to appeal 21-3982.
Neither Garrett nor Nutter is a party on appeal.
2a
v.
THE OHIO STATE UNIVERSITY,
Defendant-Appellee.
Argued: October 25, 2022
Decided and Filed: February 15, 2023
[60 F.4th 359]
Before: GUY, WHITE, and LARSEN, Circuit
Judges.
LARSEN, Circuit Judge.
From the late 1970s to the late 1990s, Dr. Richard
Strauss sexually abused hundreds of students at The
Ohio State University. In 2018, former Ohio State
student-athletes came forward alleging that Strauss
had abused them and that Ohio State had covered it
up. Hundreds of survivors sued Ohio State under
Title IX, including the two groups of plaintiffs before
us. The district court dismissed the claims as timebarred. Before we heard this appeal, another panel of
this court reversed the district court’s order as it
pertained to two other groups of plaintiffs. See
Snyder-Hill v. Ohio State Univ., 48 F.4th 686 (6th Cir.
2022). The holding in Snyder-Hill applies equally to
these plaintiffs’ claims, so we VACATE the district
court’s dismissal of plaintiffs’ claims as untimely.
Plaintiffs before us also bring two other claims: one
group of plaintiffs appeals the dismissal of their Title
IX retaliation claims, and all plaintiffs appeal the
district court’s denial of their motions for recusal. On
those claims we AFFIRM. We REMAND to the
district court for further proceedings consistent with
this opinion.
3a
I.
The disturbing facts of these cases began in 1978
when Ohio State hired Dr. Richard Strauss, M.D., as
an assistant professor of medicine.1 From 1978 to
1996, Strauss treated students and student-athletes
in various capacities, including as the “official team
doctor for as many as fourteen sports” and as an oncampus student health center physician. Strauss was
also a tenured professor at Ohio State. When Strauss
voluntarily and “quietly” retired in 1998, the
university designated him as an Emeritus Professor
even though he had been “quietly placed on
administrative leave” in January 1996 following
multiple reports of abuse.
While Strauss was
employed by Ohio State “[p]laintiffs, as well as
hundreds of other former students, suffered
unspeakable sexual abuse by Strauss.”
In April 2018, former student-athletes publicly
accused Ohio State of covering-up Strauss’s abuse.
On April 5, 2018, Ohio State hired the law firm
Perkins Coie, LLP to investigate Strauss’s conduct
and the extent to which Ohio State knew about it.
Ohio State released Perkins Coie’s report in May
2019; the report concluded that Strauss had sexually
abused at least 177 male student-patients, the
majority of whom were student-athletes.2 See Caryn
Trombino & Markus Funk, Perkins Coie LLP, Report
of the Independent Investigation: Sexual Abuse
1
Because this case is at the motion to dismiss phase, we
take the factual allegations in the plaintiffs’ complaints as true.
See Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir. 2018).
2 The report is dated May 15, 2019, but some plaintiffs
allege that it was not publicly released by Ohio State until May
17, 2019.
4a
Committed by Dr. Richard Strauss at The Ohio State
University (Perkins Coie Report) at 1, 43 (May 15,
2019).
Plaintiffs allege that, as documented in the
Perkins Coie Report, Ohio State knew about Strauss’s
abuse and, at minimum, failed to meaningfully
investigate it. Ohio State “legitimized Strauss’s
conduct as ordinary medical care,” as various
university officials ignored student complaints—
including one as early Strauss’s first year as team
physician in 1979—and continued to employ and
promote Strauss, failed to investigate numerous
complaints about Strauss’s sexual abuse, hid or failed
to maintain records of abuse complaints and failed to
inform students and some Ohio State staff of the
abuse until 2018. Plaintiffs allege that Ohio State
played a “key and active role” in “normalizing and
perpetuating” Strauss’s abuse over the course of
decades and that there was a “widespread and
intentional culture of silence, cover-up, and deliberate
indifference to sex crimes” within the university.
Plaintiffs say that they now know that Strauss’s
harassment and abuse was reported to the head
coaches of multiple sports, university administrators,
university physicians and medical directors, and to
the head of the Athletic Department—only for each of
those officials to “turn[] a blind eye to the abuse.” But
some plaintiffs allege that they did not and could not
have known about Ohio State’s knowledge, and coverup, of their abuse until the release of the Perkins Coie
Report in 2019. Others allege that the earliest they
could have known about Ohio State’s role was in 2018,
but that they did not know the full extent of the
university’s involvement until the release of the
Perkins Coie Report in 2019.
5a
In all, 532 plaintiffs brought 37 separate cases
against Ohio State relating to Strauss’s abuse and the
university’s response. This appeal concerns five of
those suits, consolidated into two appeals that we
hear together. On July 16, 2018, a group of plaintiffs
led by Brian Garrett filed a class action complaint
against Ohio State related to Strauss’s abuse, Garrett,
et al. v. The Ohio State University, No. 21-3972. On
May 14, 2021, the Garrett class members filed a
“copy-cat class action,” Alf, et al. v. The Ohio State
University, No. 21-4070. The Garrett and Alf cases
were consolidated on appeal. The Garrett and Alf
plaintiffs are former Ohio State students or studentathletes who allege they were abused by Strauss
between 1978 and 1998. Rocky Ratliff, the plaintiff in
Ratliff, serves as counsel in his own case, Ratliff v.
The Ohio State University, No. 21-3974, and in two
others: Nutter, et al. v. The Ohio State University, No.
21-3982, and Canales, et al. v. The Ohio State
University, No. 21-4128. Those cases were filed on
October 25, 2019, June 12, 2019, and May 17, 2021,
respectively. All the Ratliff, Nutter, and Canales
plaintiffs are former Ohio State student-athletes.
Judge Michael Watson handled all cases relating
to Strauss in the Southern District of Ohio. Judge
Watson told the parties at a status conference in
January 2019 that he was teaching a class at The
Ohio State University Moritz College of Law, and he
thought “every member of this bench probably, have
at one time or another served as an adjunct professor
of Ohio State.” At the same status conference, Judge
Watson also told the parties, “I say that only because
if you want to take shots, you can take shots. I’m
thinking that my intention is to stay on the case and,
nonetheless, I’m letting you know in case you want to
6a
raise something.” At the same hearing, Judge Watson
told the parties that he knew the chairman of the
Ohio State Board of Trustees and that the president
was “a man of his word.” No party brought a recusal
motion at that time.
On September 9, 2021, Judge Watson called an
emergency status conference after a reporter
contacted the court’s public information specialist,
inquiring about a business relationship between Ohio
State and a store Judge Watson’s wife owns. Judge
Watson explained that “ethical considerations are the
utmost importance to me personally, to the parties
and to the public, as well as the federal judiciary as a
whole.” He explained that his wife owns a store that
sells and manufactures flags, including Ohio State
flags; the business has a licensing agreement with
Ohio State; and the business pays a 12% royalty to
Ohio State for every Ohio State trademarked product
the business sells. Judge Watson told the parties that
he had not disclosed the licensing agreement
previously—and he still did not believe disclosure was
required—but that neither he nor his wife had a
financial interest in Ohio State as defined by the Code
of Conduct for judges or relevant advisory ethics
opinions. Nonetheless, because “a member of the
public” had inquired about the store, he “believe[d]
that Canon 3 of the Code of Ethics, the appearance of
impropriety may be implicated” so he wanted to
formally disclose the fact on the record and give
parties a chance to move for recusal.
All plaintiffs before us filed motions for recusal
and to transfer venue based on the above and Judge
Watson’s other connections to Ohio State (namely, his
participation in the “annual Buckeye Cruise for
Cancer”). The district court denied the motions in a
7a
detailed opinion. See Garrett v. Ohio State Univ., No.
2:18-CV-692, 2021 WL 7186381 (S.D. Ohio Sept. 22,
2021).
Ohio State filed motions to dismiss in each case.
The district court granted the motions, concluding
that all plaintiffs’ Title IX claims were time-barred by
Ohio’s two-year statute of limitations, whether
measured by a discovery rule or an occurrence rule.
The Ratliff, Nutter, and Canales plaintiffs also
brought a Title IX retaliation claim against Ohio
State. They asserted that reporting Strauss’s sexual
abuse and Ohio State’s cover-up was protected
activity. And they alleged that current and former
Ohio State employees and others connected to Ohio
State made public comments on the radio and private
statements via phone, email or text, in a retaliatory
attempt to “silence” plaintiffs. The district court
dismissed the retaliation claims for a failure to state
a claim.
All plaintiffs now appeal.
II.
A. Claim Accrual
We review de novo the grant of a motion to dismiss
on statute of limitations grounds. Am. Premier
Underwriters, Inc. v. Nat’l R.R. Passenger Corp., 839
F.3d 458, 461 (6th Cir. 2016). Ohio law supplies the
statute of limitations,3 but federal law governs when
3
The Garrett and Alf plaintiffs argue that Ohio’s two-year
statute of limitations should not govern their Title IX claims.
They urge that any limitations period must be set by federal law,
and that because Title IX does not contain an express limitations
period, it has “no limitations, except the common law laches
doctrine.” It is, of course, not surprising that Title IX contains
no express limitations period, as it also contains no “express
8a
the claims accrue, that is, “when the statute begins to
run.” Snyder-Hill, 48 F.4th at 698 (quoting Sharpe v.
Cureton, 319 F.3d 259, 266 (6th Cir. 2003)).
The accrual question was the centerpiece of these
appeals. But before we heard this appeal, another
panel of this court heard the appeal of a different
group of Ohio State plaintiffs, whose cases had been
consolidated with these cases in the district court and
whose cases were dismissed by the same order from
which the current plaintiffs appeal. See Snyder-Hill
v. Ohio State Univ., 48 F.4th 686 (6th Cir. 2022). That
panel held that the discovery rule applies to Title IX
claims, meaning that a plaintiff’s claim accrues when
he “knows or has reason to know” not only that he was
injured but also that “the defendant caused” his
injury. Id. at 704. For a Title IX case like this one, a
plaintiff’s claim does not accrue until he “knows or has
reason to know that the defendant institution,” here
Ohio State, injured him. Id. (emphasis omitted). So
“the clock starts only once the plaintiff knows or
should have known that Ohio State administrators
‘with authority to take corrective action’ knew of
Strauss’s
conduct
and
failed
to
respond
appropriately.” Id. at 705 (quoting Gebser v. Lago
Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998)). In
addressing claims substantially similar to those
cause of action that allows students to sue.” Bannister v. Knox
Cnty. Bd. of Educ., 49 F.4th 1000, 1013 (6th Cir. 2022). Instead,
“the Supreme Court created an implied right of action that
permits students to seek damages.” Id. And we, like our sister
circuits, have held “that Title IX (like § 1983) adopts the forum
state’s statute of limitations for personal-injury actions.” Id.
(citing decisions from the Second, Fifth, and Ninth Circuits). So
Ohio’s two-year statute of limitations for personal injury claims
applies. Snyder-Hill, 48 F.4th at 698.
9a
presented here, Snyder-Hill held that “the plaintiffs’
claims survive Ohio State’s motion to dismiss for
three independent” reasons: until 2018, when the
allegations of abuse became public, (1) “plaintiffs
plausibly allege that they did not know and lacked
reason to know that Ohio State caused their injury,”
(2) “they plausibly allege that even if they had
investigated further, they could not have learned of
Ohio State’s conduct,” and (3) some “plaintiffs
plausibly allege that they did not know that they were
abused.” Id. at 706–07.
When this case was briefed, the parties did not
have the benefit of the Snyder-Hill opinion; but once
that opinion was released, the parties submitted some
supplemental briefing on the effect of Snyder-Hill in
connection with the plaintiffs’ motion to cancel oral
argument. We denied that motion. At oral argument,
we invited the parties to explain any ways in which
they thought Snyder-Hill did not govern the accrual
question.
Ohio State argued that the Garrett and Alf
plaintiffs’ cases could be distinguished from SnyderHill because the Garrett and Alf plaintiffs conceded in
their reply brief that they knew of their abuse when
it occurred. But this concession does not distinguish
the Garrett and Alf plaintiffs from all of the SnyderHill plaintiffs. The Snyder-Hill opinion noted that
nine plaintiffs in that case likewise knew they were
being abused at the time. See id. at 694, 706. SnyderHill still found those claims timely because the
plaintiffs had plausibly alleged that they did not know
or have reason to know, until 2018, about Ohio State’s
conduct. Id. at 704–05.
A few facts do distinguish the complaints in the
present cases from Snyder-Hill, however. According
10a
to Snyder-Hill, the plaintiffs in those cases alleged
that they could not have known that Ohio State
injured them until 2018, when the allegations of
abuse became public. Id. at 689–90, 695. In the
present cases, the Garrett and Alf plaintiffs assert
that the spring of 2018 was the earliest they could
have known about Ohio State’s role in causing their
injury; but they contend that they did not and could
not have known of Ohio State’s full involvement until
the Perkins Coie Report was released in 2019. For the
Alf plaintiffs, the 2019 date may be critical, absent
tolling.4
They have conceded that they knew
Strauss’s actions constituted abuse at the time they
occurred, and their suit was not filed until May 14,
2021 (less than two years from the Perkins Coie
Report’s release, but more than two years from Ohio
State’s investigation announcement). The 2019 date,
and indeed the particular day in May, might also
matter to the Canales plaintiffs, who filed suit on May
17, 2021. They allege that the Perkins Coie Report
was “issued” or “released” on May 15, 2019, but that
they did not know either of their abuse or Ohio State’s
role in it until May 17, 2019, when the university’s
President and Chair of the Board of Trustees issued a
public letter, “which resulted in extensive nationwide
media coverage.”
Just when the plaintiffs knew or should have
known that Strauss’s conduct was abuse, and when
they knew or should have known about Ohio State’s
role in causing their injuries are questions of fact that
4
The plaintiffs argued below that the Garrett class filing
on July 16, 2018, tolled their statute of limitations. See Am. Pipe
& Constr. Co. v. Utah, 414 U.S. 538, 551, 553 (1974); Crown,
Cork & Seal Co. v. Parker, 462 U.S. 345, 353–54 (1983).
11a
we cannot resolve on a motion to dismiss. See Am.
Premier Underwriters, 839 F.3d at 464 (cautioning
that “courts should not dismiss complaints on statuteof-limitations grounds when there are disputed
factual questions relating to the accrual date”); Lutz
v. Chesapeake Appalachia, L.L.C., 717 F.3d 459, 476
(6th Cir. 2013) (in the tolling context, stating that
questions about a plaintiff’s duty to investigate “are
questions for summary judgment or for trial, and they
should not be resolved on a motion to dismiss”). For
now, we conclude that the Ratliff, Nutter, and Canales
plaintiffs have plausibly alleged all three independent
reasons supporting Snyder-Hill’s holding, and the
Garrett and Alf plaintiffs have plausibly alleged the
first two. That is enough for their claims to survive
Ohio State’s motion to dismiss.
B. The Ratliff, Nutter, and Canales Plaintiffs’
Retaliation Claim
The district court found that the Ratliff, Nutter,
and Canales plaintiffs had failed to state a Title IX
retaliation claim. Reviewing that decision de novo,
see Doe v. Miami Univ., 882 F.3d 579, 588 (6th Cir.
2018), we agree. The Supreme Court has held that a
“funding recipient” may be liable for retaliating
“against a person because he complains of sex
discrimination.” Jackson v. Birmingham Bd. of
Educ., 544 U.S. 167, 174 (2005) (emphasis omitted).
But plaintiffs have failed to plead a retaliation claim.
At a minimum, they have failed to allege that the
funding recipient, Ohio State, retaliated against
them. They broadly claim retaliation by “OSU
employees, faculty, staff, former employees of OSU,
friends and/or benefactors of OSU” in the form of
public interviews, emails, texts and calls to some
12a
plaintiffs. But there is neither individual liability nor
respondeat superior liability under Title IX; instead
“an educational institution is responsible under Title
IX only for its ‘own official decision[s].’” Bose v. Bea,
947 F.3d 983, 991 (6th Cir. 2020) (quoting Gebser, 524
U.S. at 290–91). So the Ratliff, Nutter, and Canales
plaintiffs must adequately allege a claim against Ohio
State as an institution. They have not done so.
The plaintiffs attempt to avoid this conclusion by
stating that Ohio State has not taken any action
against the Ohio State-affiliated individuals, so Ohio
State has ratified their actions. But we have not
recognized a claim for deliberate indifference to
retaliation, see Bose, 947 F.3d at 993; and, even if we
were to do so, plaintiffs have not adequately pleaded
that anyone within Ohio State, with power to stop the
alleged retaliatory actions, had any knowledge of
them, see id. at 989–90 (citing Gebser, 524 U.S. at
290). And, for Ratliff himself, we also do not know
what, if any, harm resulted. Cf. Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006) (Title
VII case) (“The antiretaliation provision protects an
individual not from all retaliation, but from
retaliation that produces an injury or harm.”). The
Ratliff, Nutter, and Canales plaintiffs’ vague
allegations are insufficient to state a claim for Title
IX retaliation.
C. Recusal
Finally, all plaintiffs before us appeal the district
court’s denial of their motions to recuse the district
judge and to transfer the case to a judge in a different
division of the Southern District of Ohio. We review
both motions for an abuse of discretion. Alemarah v.
Gen. Motors, LLC, 980 F.3d 1083, 1086 (6th Cir. 2020)
13a
(per curiam); Stanifer v. Brannan, 564 F.3d 455, 456
(6th Cir. 2009). “An abuse of discretion occurs when
a district court commits a clear error of judgment,
such as applying the incorrect legal standard,
misapplying the correct legal standard, or relying
upon clearly erroneous findings of fact.” King v.
Harwood, 852 F.3d 568, 579 (6th Cir. 2017) (internal
quotation marks omitted) (quoting Info-Hold, Inc. v.
Sound Merch., Inc., 538 F.3d 448, 454 (6th Cir. 2008)).
Recusal Standard. Federal judges are bound by
the recusal standard in 28 U.S.C. § 455(a): “Any
justice, judge, or magistrate judge of the United
States shall disqualify himself in any proceeding in
which his impartiality might reasonably be
questioned.” And a judge “shall also disqualify
himself” when “[h]e knows that he . . . or his spouse
. . . has a financial interest in the subject matter in
controversy or in a party to the proceeding, or any
other interest that could be substantially affected by
the outcome of the proceeding.” Id. § 455(b)(4). We
cannot say that Judge Watson abused his discretion
in determining that § 455 did not require his recusal.
Section 455(b)—Financial Interest. Both sets of
plaintiffs argue that Judge Watson was subject to
automatic recusal because he and/or his wife has a
financial interest in Ohio State. A “financial interest”
is “ownership of a legal or equitable interest, however
small, or a relationship as director, adviser, or other
active participant in the affairs of a party.” Id.
§ 455(d)(4). Plaintiffs argue that Judge Watson’s
wife’s store, which sells flags to and has licensing
agreements with many entities, including Ohio State,
gives the judge or his wife a financial interest in Ohio
State. They also suggest that Judge Watson’s salary
as an adjunct professor at Ohio State’s law school
14a
gives him a financial interest in the university.
Neither claim is correct. Neither Mrs. Watson’s
ownership of the store nor Judge Watson’s adjunct
professorship gave Judge Watson or his wife
“ownership of a legal or equitable interest” in Ohio
State; nor did they establish either of them as a
“director, adviser, or other active participant in the
affairs of” the university. Id. And neither position
entailed an “interest that could be substantially
affected by the outcome of the proceeding.” Id.
§ 455(b)(4).
Section 455 “does not require the judge to ‘accept
as true the allegations made by the party seeking
recusal.’” Scott v. Metro. Health Corp., 234 F. App’x
341, 353 (6th Cir. 2007) (quoting In re MartinezCatala, 129 F.3d 213, 220 (1st Cir. 1997)). The parties
do not challenge Judge Watson’s factfinding, so we
proceed on the facts as found below. See In re
Martinez-Catala, 129 F.3d at 220 (“It might seem odd
that recusal issues should be decided by the very
judge whose recusal is in question. But there are
other considerations at work, including a desire for
expedition and a concern to discourage judge
shopping.”).
The district court found that “[n]either the [s]tore,
Defendant’s licensing agreements, nor Defendant’s
vendor relationships are at issue in the underlying
lawsuits or implicated in Plaintiffs’ allegations of
wrongdoing.” Garrett, 2021 WL 7186381, at *2. It
also found that in the time the cases had been pending
before the court, the store’s sales to Ohio State made
up at most 0.89% of its total sales in a given year, and
that the combination of these direct sales and sales of
Ohio State “licensed products to the public . . . never
exceeded 2.4% of the [s]tore’s total sales.” Id. at *6.
15a
And the court concluded that the store will not be
“affected by the outcome of these proceedings.” Id. at
*2; 28 U.S.C. § 455(b)(4). Based on these findings, the
district judge did not abuse his discretion in declining
to recuse.
See Scott, 234 F. App’x at 357
(“[D]isqualification is not required on the basis of . . .
remote, contingent, indirect or speculative [financial]
interests.” (quoting United States v. Bayless, 201 F.3d
116, 127 (2d Cir. 2000))).
Section 455(a)—Reasonable Grounds to Question
Impartiality.
The Ratliff, Nutter, and Canales
plaintiffs also argue that the district court erred in
denying their motions for recusal based on § 455(a).
Under that section, a judge must recuse “in any
proceeding in which his impartiality might
reasonably be questioned.” 28 U.S.C. § 455(a). As
these plaintiffs point out, the question is whether,
given the facts, an objective “reasonable person
perceives a significant risk that the judge will resolve
the case on a basis other than the merits.” Ratliff Br.
at 22 (quoting Hook v. McDade, 89 F.3d 350, 354 (7th
Cir. 1996)); see also Ragozzine v. Youngstown State
Univ., 783 F.3d 1077, 1079 (6th Cir. 2015) (“[A] judge
[must] recuse ‘if a reasonable, objective person,
knowing all of the circumstances, would have
questioned the judge’s impartiality.’” (quoting Hughes
v. United States, 899 F.2d 1495, 1501 (6th Cir. 1990))).
“The standard is an objective one; hence, the judge
need not recuse himself based on the ‘subjective view
of a party’ no matter how strongly that view is held.”
United States v. Sammons, 918 F.2d 592, 599 (6th Cir.
1990) (citation omitted).
First, the plaintiffs argue that Judge Watson’s role
as an adjunct professor leads to reasonable questions
about his impartiality. In his detailed opinion
16a
denying the recusal motions, Judge Watson relied on
the Guide to Judiciary Policy, Vol. 2, Ch. 3,
Compendium of Selected Opinions, § 3.4-3(a), which
provides guidance to judges on recusal matters. That
guidance says that a judge who teaches at a law
school need not recuse from every case involving the
university as a whole. Instead, a judge should
consider “the size and cohesiveness of the university,
the degree of independence of the law school, the
nature of the case, and related factors.” Id. This kind
of “opinion” is not binding, but here we think the
factors it directs judges to consider are sound. In line
with that guidance, Judge Watson determined that
his adjunct professorship at Moritz College of Law did
not require his recusal from these cases involving the
university. He reasonably explained that Ohio State
“is one of the largest universities in the country, and
Moritz is ‘one small and virtually autonomous part.’”
Garrett, 2021 WL 7186381, at *5 (quoting Meng
Huang v. Ohio State Univ., No. 2:19-CV-1976, 2020
WL 8461547, at *2 (S.D. Ohio Oct. 26, 2020), aff’d,
2020 WL 8461560 (S.D. Ohio Nov. 4, 2020)). And
Moritz “is not involved in any of the allegations at
issue in these cases.” Id. We join our sister circuits
in concluding that recusal is not required just because
a judge serves as an adjunct professor at the law
school of a party-university. See, e.g., Sessoms v. Trs.
of Univ. of Penn., 739 F. App’x 84, 90 (3d Cir. 2018)
(concluding that the district court judge who served
as an adjunct professor at the defendant university’s
law school did not abuse its discretion in declining to
recuse in a case against the university); Roe v. St.
Louis Univ., 746 F.3d 874, 887 (8th Cir. 2014)
(affirming decision not to recuse in a case against the
university where district judge was an alumnus of the
17a
undergraduate school and law school, taught at the
law school, and made “positive comments about the
school”); Wu v. Thomas, 996 F.2d 271, 275 (11th Cir.
1993) (holding that district judge’s “status as an
adjunct professor [at law school] and his past
contributions to the [u]niversity” did not require
recusal in a case against the university). The district
court did not abuse its discretion by denying the
motions for recusal on this basis.
The Ratliff, Nutter, and Canales plaintiffs also
suggest that Mrs. Watson’s ownership of the flag store
creates a reasonable ground to question the judge’s
impartiality. It is true that the flag store has a
licensing agreement to sell Ohio State-branded
merchandise; that it prominently advertises that
merchandise; and that it even sells some of that
merchandise to Ohio State. See Garrett, 2021 WL
7186381, at *2. But, as noted above, the flag store
does not create a financial interest either in the
university or in the outcome of this lawsuit, that
would require Judge Watson’s recusal under § 455(b).
And the store’s financial relationships with Ohio
State are too de minimis to raise reasonable questions
concerning impartiality under § 455(a). The Ratliff,
Nutter, and Canales plaintiffs’ only other argument—
that the store advertises its long history of supplying
flags to the Ohio State football cheerleaders—is
insufficient. The store’s advertising would not cause
a reasonable, informed observer to believe that Judge
Watson would resolve this case on a basis other than
the merits. See Hook, 89 F.3d at 354 (citing In re
Mason, 916 F.2d 384, 385–86 (7th Cir. 1990)).
The Ratliff, Nutter, and Canales plaintiffs also
point to Judge Watson’s and his wife’s involvement
with the “Buckeye Cruise for Cancer,” a fundraising
18a
event for the Ohio State University Comprehensive
Cancer Center. Garrett, 2021 WL 7186381, at *2. The
district court found that the cruise raises money to
support the Cancer Center, which is an “independent
entity;” and that the event is not organized by the
university and raises no funds for the university
itself. Id. at *2, *7. Plaintiffs do not challenge these
findings on appeal. And, as Judge Watson pointed
out, id. at *7, Canon 4 of the Code of Conduct for
United States Judges, which provides guidance on
“extrajudicial activities,” expressly permits judges
to “participate in . . . [a] charitable . . . organization.”
Available
at
https://www.uscourts.gov/judgesjudgeships/code-conduct-united-states-judges#e.
Plaintiffs seem to concede this point, repeatedly
calling the couple’s fundraising efforts “noble.”
Plaintiffs nonetheless argue that the cruise
created a reasonable basis for questioning the judge’s
impartiality because the cruise was filled with Ohio
State “notables,” and because Judge Watson and his
wife were recognized both onboard and on social
media for their fundraising efforts. But plaintiffs do
not contend that Judge Watson discussed these
lawsuits with anyone on the cruise; and plaintiffs’
own exhibits show that the recognition came from the
Cancer Center, not from Ohio State. The district
court did not abuse its discretion in denying the
motion for recusal on this basis.
Lastly, the Ratliff, Nutter, and Canales plaintiffs
suggest either that Judge Watson’s “full involvement”
with Ohio State, or his failure to timely disclose it,
creates an objective basis to question the judge’s
impartiality. We don’t doubt that “the whole is
sometimes greater than the sum of [its] parts.” In re
Martinez-Catala, 129 F.3d at 221. “The cumulative
19a
effect of a judge’s individual actions, comments and
past associations could raise some question about
impartiality, even though none (taken alone) would
require recusal.” Id. But considered against the
backdrop of this court’s caselaw, we cannot say that
such is the case here. See Easley v. Univ. of Mich. Bd.
of Regents, 906 F.2d 1143, 1145–46 (6th Cir. 1990)
(concluding that the judge, presiding over a case
involving the law school, was not required to recuse
where he was “an alumnus of the Law School,” a past
“volunteer fundraiser for the Law School Fund,” a
“member of the [Law School’s] Committee of Visitors
. . . the purposes of which are essentially social and
informational,” and a “member of The University of
Michigan Club of Detroit through which he
participates in athletics-related social events”). Just
as we determined that it was not abuse of discretion
for Judge Watson to deny plaintiffs’ motions for
recusal on any of the above grounds, we also conclude
that he did not abuse his discretion when considering
these factors in combination.
Nor is Judge Watson’s failure to timely disclose
these purported conflicts indicative of partiality.
First, as plaintiffs acknowledge, Judge Watson did
disclose his adjunct professorship, and his
acquaintance with the chairman of the Board of
Trustees, more than two years before plaintiffs filed
their recusal motions, and he specifically invited any
recusal motions at that time. Next, given the
unchallenged factual findings below, we cannot say
that Judge Watson was under any obligation to
disclose his charitable, and already public, efforts on
behalf of the Cancer Center. That leaves the matter
of the flag store. While the flag store creates no
“financial interest” requiring recusal under
20a
§ 455(b)(4), and plaintiffs have established no
reasonable basis to question Judge Watson’s
impartiality on this ground, the better course would
have been to disclose the store’s licensing agreement
and direct sales at the outset of the litigation. As
Judge Watson himself acknowledged, the fact that a
judge’s “spouse or the spouse’s business has a
business relationship with an entity that appears in
an unrelated proceeding before the judge usually does
not require the judge’s recusal”—but sometimes it
may. Garrett, 2021 WL 7186381, at *5 (citing Guide
to Judiciary Policy, Vol. 2, Ch. 2, Advisory Opinion
No. 107).
Nevertheless, in light of the
circumstances—including Judge Watson’s emergency
status conference concerning the issue and his
renewed
receptiveness
to
recusal
motions
thereafter—we cannot say that the timing of Judge
Watson’s disclosure raises objective impartiality
concerns.
Judge Watson, who sits in Columbus, Ohio,
undoubtedly had a number of points of contact with
Ohio State, its affiliates, and hangers-on. That is
neither surprising, nor necessarily undesirable. The
Judicial Code of Conduct counsels that the “complete
separation of a judge from extrajudicial activities is
neither possible nor wise; a judge should not become
isolated from the society in which the judge lives.”
Code of Conduct for United States Judges,
Commentary, Canon 4. The question under § 455(a)
is whether the judge’s personal or community
associations are of such a character that they would
cause an informed, reasonable observer to believe
that the judge “could not set [them] aside when
judging the dispute.” Liteky v. United States, 510 U.S.
540, 557–58 (1994) (Kennedy, J., concurring). An
21a
impartial judiciary—and the appearance of an
impartial judiciary—is of the utmost importance. At
the same time, “needless recusals exact a significant
toll”; “a change of umpire mid-contest may require a
great deal of work to be redone . . . and facilitate
judge-shopping.” In re U.S., 572 F.3d 301, 308 (7th
Cir. 2009) (quoting Matter of Nat’l Union Fire Ins. Co.
of Pitt., 839 F.2d 1226, 1229 (7th Cir. 1988)). So,
“[t]here is as much obligation upon a judge not to
recuse himself when there is no occasion as there is
for him to do so when there is.” Easley v. Univ. of
Mich. Bd. of Regents, 853 F.2d 1351, 1356 (6th Cir.
1988) (quoting In re Union Leader Corp., 292 F.2d
381, 391 (1st Cir. 1961)).
We may reverse the denial of a recusal motion
“only where [we are] left with a ‘definite and firm
conviction that the trial court committed a clear error
of judgment.’” United States v. Angelus, 258 F. App’x
840, 842 (6th Cir. 2007) (quoting In re Triple S Rests.,
Inc., 422 F.3d 405, 418 (6th Cir. 2005)). We have no
such conviction here. And because we conclude that
Judge Watson did not abuse his discretion in denying
the motion for recusal, we also conclude that he did
not abuse his discretion in denying the motions for
transfer. See Liteky, 510 U.S. at 551 (“It has long been
regarded as normal and proper for a judge to sit in the
same case upon its remand . . . .”).
* * *
We VACATE the district court’s dismissal of all
plaintiffs’ Title IX claims and REMAND to the district
court for further proceedings consistent with this
opinion. We AFFIRM the district court’s dismissal of
the Ratliff, Nutter, and Canales plaintiffs’ retaliation
claims and the denial of all plaintiffs’ motions for
recusal and to transfer venue.
22a
[Filed December 16, 2022]
[2022 WL 17730528]
Case No. 21-4109
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN DOES 174, 176, ) ON APPEAL FROM
182 & 183; JANE DOE ) THE UNITED STATES
COURT
1,
) DISTRICT
FOR THE SOUTHERN
)
Plaintiffs-Appellants,
) DISTRICT OF OHIO
v.
)
ORDER
)
THE OHIO STATE
)
UNIVERSITY,
)
Defendant-Appellee, )
Before: CLAY, GIBBONS, and McKEAGUE, Circuit
Judges.
PER CURIAM. Between 1978 and 1998, Dr.
Richard Strauss, a university physician and athletic
team doctor at the Ohio State University, allegedly
sexually abused hundreds of individuals under the
guise of performing medical examinations. The
allegations did not become public until 2018,
following Ohio State’s commissioning of an
independent investigation undertaken by the law
firm Perkins Coie, which substantiated the
allegations of abuse. After the allegations became
public, survivors of this abuse—including Plaintiffs in
this case—brought Title IX suits against Ohio State,
23a
alleging that Ohio State was deliberately indifferent
to their heightened risk of abuse and that Ohio State
actually concealed the abuse. The district court found
that Plaintiffs’ claims were barred by the statute of
limitations and dismissed the action. Plaintiffs
timely appealed.
Around the same time that the district court
dismissed Plaintiffs’ claims, the district court also
dismissed claims brought by other alleged survivors
of Strauss’ abuse. See Garrett v. Ohio State Univ., 561
F. Supp. 3d 747 (S.D. Ohio 2021); Ratliff v. Ohio State
Univ., No. 2:19-cv-4746, 2021 WL 7186198 (S.D. Ohio
Sept. 22, 2021); Snyder-Hill v. Ohio State Univ., No.
2:18-cv-736, 2021 WL 7186148 (S.D. Ohio Sept. 22,
2021); Moxley v. Ohio State Univ., No. 2:21-cv-3838,
2021 WL 7186269 (S.D. Ohio Oct. 25, 2021). The
district court reasoned that the plaintiffs’ claims were
barred by the statute of limitations because the abuse
happened more than two years ago, and the plaintiffs
knew or had reason to know that they were injured at
the time that the abuse occurred. See Garrett, 561 F.
Supp. 3d at 754–62; Snyder-Hill, 2021 WL 7186148,
at *1; Moxley, 2021 WL 7186269, at *1. The district
court dismissed Plaintiffs’ claims in this case for the
same reasons.
While Plaintiffs’ appeal in this case was pending,
this Court decided an appeal involving the lawsuits
Snyder-Hill v. Ohio State University, No. 2:18-cv-736
(S.D. Ohio) and Moxley v. Ohio State University, No.
2:21-cv-3838 (S.D. Ohio). In Snyder-Hill, et al. v. Ohio
State University, 48 F.4th 686 (6th Cir. 2022), this
Court held that the plaintiffs adequately alleged that
they did not know, and could not have reasonably
known, that they were injured by Ohio State until
2018. Accordingly, this Court held that the plaintiffs’
24a
Title IX claims against Ohio State did not accrue until
2018, and that the claims therefore were not barred
by the two-year statute of limitations. Id. at 690, 705–
06.
On review of Plaintiffs’ claims in this case, we
conclude that the district court’s judgment should be
vacated and the action remanded so that the district
court may consider in the first instance whether the
statute of limitations bars Plaintiffs’ claims in light of
this Court’s decision in Snyder-Hill. Accordingly, we
VACATE the district court’s dismissal of Plaintiffs’
complaint and REMAND the matter for
reconsideration in light of Snyder-Hill.
IT IS SO ORDERED.
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
25a
[Filed December 16, 2022]
[2022 WL 17730532]
Case No. 21-4116
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN DOE 195,
)
Plaintiff-Appellant, )
)
v.
)
)
THE OHIO STATE
)
UNIVERSITY,
)
Defendant-Appellee, )
ON APPEAL FROM
THE UNITED STATES
DISTRICT
COURT
FOR THE SOUTHERN
DISTRICT OF OHIO
ORDER
Before: CLAY, GIBBONS, and McKEAGUE, Circuit
Judges.
PER CURIAM. Between 1978 and 1998, Dr.
Richard Strauss, a university physician and athletic
team doctor at the Ohio State University, allegedly
sexually abused hundreds of individuals under the
guise of performing medical examinations. The
allegations did not become public until 2018,
following Ohio State’s commissioning of an
independent investigation undertaken by the law
firm Perkins Coie, which substantiated the
allegations of abuse. After the allegations became
public, survivors of this abuse—including Plaintiff in
this case—brought Title IX suits against Ohio State,
alleging that Ohio State was deliberately indifferent
to their heightened risk of abuse and that Ohio State
26a
actually concealed the abuse. The district court found
that Plaintiff’s claims were barred by the statute of
limitations and dismissed the action. Plaintiff timely
appealed.
Around the same time that the district court
dismissed Plaintiff’s claims, the district court also
dismissed claims brought by other alleged survivors
of Strauss’ abuse. See Garrett v. Ohio State Univ., 561
F. Supp. 3d 747 (S.D. Ohio 2021); Ratliff v. Ohio State
Univ., No. 2:19-cv-4746, 2021 WL 7186198 (S.D. Ohio
Sept. 22, 2021); Snyder-Hill v. Ohio State Univ., No.
2:18-cv-736, 2021 WL 7186148 (S.D. Ohio Sept. 22,
2021); Moxley v. Ohio State Univ., No. 2:21-cv-3838,
2021 WL 7186269 (S.D. Ohio Oct. 25, 2021). The
district court reasoned that the plaintiffs’ claims were
barred by the statute of limitations because the abuse
happened more than two years ago, and the plaintiffs
knew or had reason to know that they were injured at
the time that the abuse occurred. See Garrett, 561 F.
Supp. 3d at 754–62; Snyder-Hill, 2021 WL 7186148,
at *1; Moxley, 2021 WL 7186269, at *1. The district
court dismissed Plaintiff’s claims in this case for the
same reasons.
While Plaintiff’s appeal in this case was pending,
this Court decided an appeal involving the lawsuits
Snyder-Hill v. Ohio State University, No. 2:18-cv-736
(S.D. Ohio) and Moxley v. Ohio State University, No.
2:21-cv-3838 (S.D. Ohio). In Snyder-Hill, et al. v. Ohio
State University, 48 F.4th 686 (6th Cir. 2022), this
Court held that the plaintiffs adequately alleged that
they did not know, and could not have reasonably
known, that they were injured by Ohio State until
2018. Accordingly, this Court held that the plaintiffs’
Title IX claims against Ohio State did not accrue until
2018, and that the claims therefore were not barred
27a
by the two-year statute of limitations. Id. at 690, 705–
06.
On review of Plaintiff’s claims in this case, we
conclude that the district court’s judgment should be
vacated and the action remanded so that the district
court may consider in the first instance whether the
statute of limitations bars Plaintiff’s claims in light of
this Court’s decision in Snyder-Hill. Accordingly, we
VACATE the district court’s dismissal of Plaintiff’s
complaint and REMAND the matter for
reconsideration in light of Snyder-Hill.
IT IS SO ORDERED.
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
28a
[Filed December 16, 2022]
[2022 WL 17730529]
Case No. 21-4121
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN DOE 162,
)
Plaintiff-Appellant, )
)
v.
)
)
THE OHIO STATE
)
UNIVERSITY,
)
Defendant-Appellee, )
ON APPEAL FROM
THE UNITED STATES
DISTRICT
COURT
FOR THE SOUTHERN
DISTRICT OF OHIO
ORDER
Before: CLAY, GIBBONS, and McKEAGUE, Circuit
Judges.
PER CURIAM. Between 1978 and 1998,
Dr. Richard Strauss, a university physician and
athletic team doctor at the Ohio State University,
allegedly sexually abused hundreds of individuals
under the guise of performing medical examinations.
The allegations did not become public until 2018,
following Ohio State’s commissioning of an
independent investigation undertaken by the law
firm Perkins Coie, which substantiated the
allegations of abuse. After the allegations became
public, survivors of this abuse—including Plaintiff in
this case—brought Title IX suits against Ohio State,
alleging that Ohio State was deliberately indifferent
to their heightened risk of abuse and that Ohio State
29a
actually concealed the abuse. The district court found
that Plaintiff’s claims were barred by the statute of
limitations and dismissed the action. Plaintiff timely
appealed.
Around the same time that the district court
dismissed Plaintiff’s claims, the district court also
dismissed claims brought by other alleged survivors
of Strauss’ abuse. See Garrett v. Ohio State Univ.,
561 F. Supp. 3d 747 (S.D. Ohio 2021); Ratliff v. Ohio
State Univ., No. 2:19-cv-4746, 2021 WL 7186198 (S.D.
Ohio Sept. 22, 2021); Snyder-Hill v. Ohio State Univ.,
No. 2:18-cv-736, 2021 WL 7186148 (S.D. Ohio Sept.
22, 2021); Moxley v. Ohio State Univ., No. 2:21-cv3838, 2021 WL 7186269 (S.D. Ohio Oct. 25, 2021).
The district court reasoned that the plaintiffs’ claims
were barred by the statute of limitations because the
abuse happened more than two years ago, and the
plaintiffs knew or had reason to know that they were
injured at the time that the abuse occurred. See
Garrett, 561 F. Supp. 3d at 754–62; Snyder-Hill, 2021
WL 7186148, at *1; Moxley, 2021 WL 7186269, at *1.
The district court dismissed Plaintiff’s claims in this
case for the same reasons.
While Plaintiff’s appeal in this case was pending,
this Court decided an appeal involving the lawsuits
Snyder-Hill v. Ohio State University, No. 2:18-cv-736
(S.D. Ohio) and Moxley v. Ohio State University, No.
2:21-cv-3838 (S.D. Ohio). In Snyder-Hill, et al. v. Ohio
State University, 48 F.4th 686 (6th Cir. 2022), this
Court held that the plaintiffs adequately alleged that
they did not know, and could not have reasonably
known, that they were injured by Ohio State until
2018. Accordingly, this Court held that the plaintiffs’
Title IX claims against Ohio State did not accrue until
2018, and that the claims therefore were not barred
30a
by the two-year statute of limitations. Id. at 690, 705–
06.
On review of Plaintiff’s claims in this case, we
conclude that the district court’s judgment should be
vacated and the action remanded so that the district
court may consider in the first instance whether the
statute of limitations bars Plaintiff’s claims in light of
this Court’s decision in Snyder-Hill. Accordingly, we
VACATE the district court’s dismissal of Plaintiff’s
complaint and REMAND the matter for
reconsideration in light of Snyder-Hill.
IT IS SO ORDERED.
ENTERED BY ORDER OF THE COURT
/s/ Deborah S. Hunt
Deborah S. Hunt, Clerk
31a
[Filed September 22, 2021]
[561 F. Supp. 3d 747]
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Brian Garrett, et al.,
Plaintiffs,
v.
The Ohio State University,
Defendant.
Case No. 2:18-cv-692
Judge Michael H.
Watson
Magistrate Judge
Deavers
OPINION AND ORDER
Plaintiffs sue The Ohio State University (“Ohio
State”) under Title IX, 20 U.S.C. § 1681, alleging Ohio
State was deliberately indifferent to the sexual abuse
Plaintiffs suffered at the hands of Doctor Richard
Strauss (“Strauss”). Consol. Compl., ECF No. 157.
Ohio State moves to dismiss Plaintiffs’ claim under
Federal Rule of Civil Procedure 12(b)(6) as barred by
the applicable statute of limitations. Mot. Dismiss,
ECF No. 162.
I. INTRODUCTION
It is beyond dispute that Plaintiffs, as well as
hundreds of other former students, suffered
unspeakable sexual abuse by Strauss. It is also true
that many Plaintiffs and other students complained
of Strauss’s abuse over the years and yet medical
doctors, athletic directors, head and assistant
coaches, athletic trainers, and program directors
failed to protect these victims from Strauss’s
predation. For decades, many at Ohio State tasked
32a
with protecting and training students and young
athletes instead turned a blind eye to Strauss’s
exploitation. From 1979 to 2018, Ohio State utterly
failed these victims.
Plaintiffs beseech this Court to hold Ohio State
accountable, but today, the legal system also fails
Plaintiffs. Plaintiffs’ pain and suffering is neither
questioned nor overlooked by this Court; indeed, their
claims cry out for a remedy. As explained below,
Plaintiffs’ Title IX claims are barred by the existing
statute of limitations. If there is a viable path
forward for Plaintiffs on their claim against Ohio
State, it starts with the legislature rather than the
judiciary.
II. FACTS1
Plaintiffs are all former Ohio State students and
student-athletes. Compl. ¶ 33, ECF No. 157. Ohio
State is and was at all relevant times a state-owned
and -operated public university that received federal
financial assistance. Id. ¶ 134.
All of Plaintiffs’ causes of action arise from
Strauss’s sexual abuse that they endured while at
Ohio State.2 Id., passim.
1
The Court accepts Plaintiffs’ factual allegations in their
Complaint as true for purposes of Ohio State's motion to dismiss.
2
The specific allegations of the types of sexual abuse that
Strauss perpetrated on Plaintiffs and other student-athletes
have been extensively detailed in this and related cases, as well
as in the media. The detailed allegations are, unfortunately,
irrelevant to the legal issues in this order. For that reason, and
out of respect for Plaintiffs’ privacy, the Court will not further
discuss the allegations in this Opinion and Order.
33a
III. STANDARD OF REVIEW
A claim survives a motion to dismiss under Rule
12(b)(6) if it “contain[s] sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted).
“The plausibility
standard is not akin to a ‘probability requirement,’
but it asks for more than a sheer possibility that a
defendant has acted unlawfully.”
Id. (citation
omitted). This standard “calls for enough fact to raise
a reasonable expectation that discovery will reveal
evidence of [unlawful conduct].” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556 (2007). A pleading’s
“[f]actual allegations must be enough to raise a right
to relief above the speculative level, on the
assumption that all the allegations in the [pleading]
are true (even if doubtful in fact).” Id. at 555 (internal
citations omitted). While the court must “construe
the [pleading] in the light most favorable to the [nonmoving party],” Inge v. Rock Fin. Corp., 281 F.3d 613,
619 (6th Cir. 2002), the non-moving party must
provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of
action will not do.” Twombly, 550 U.S. at 555; see also
Iqbal, 556 U.S. at 678.
IV. ANALYSIS
A. Background of Title IX
Title IX of the Education Amendments of 1972 is a
federal statute designed to prevent sexual
discrimination and harassment in educational
institutions receiving federal funding. It provides:
“[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
34a
any educational program or activity receiving Federal
financial assistance.” 20 U.S.C. § 1681(a).
Although the text of the statute does not mention
a private right of action, Title IX implies a private
right of action, Cannon v. Univ. of Chicago, 441 U.S.
677 (1979), which “encompasses intentional sex
discrimination in the form of a recipient’s deliberate
indifference to a teacher’s sexual harassment of a
student.” Jackson v. Birmingham Bd. of Edu., 544
U.S. 167, 173, 125 S.Ct. 1497, 161 L.Ed.2d 361 (2005)
(citing Franklin v. Gwinnett Cty. Pub. Schs., 503 U.S.
60, 72–73, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992) and
Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274,
290–91, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998)).
To prove a deliberate indifference3 claim under
Title IX, the plaintiff must “plead, and ultimately
3
Plaintiffs also arguably allege a separate theory of Title
IX liability based on Ohio State’s creation and perpetuation of a
sexually hostile environment. The Sixth Circuit has stated that
“[h]ostile environment [Title IX] claims are distinct from
deliberate indifference [Title IX] claims.” Doe v. Univ. of Ky., 959
F.3d 246, 251 n.3 (6th Cir. 2020). “A Title IX hostileenvironment claim is analogous to a Title VII hostileenvironment claim,” and, to state such a claim, a plaintiff “must
allege that his educational experience was permeated with
discriminatory intimidation, ridicule, and insult that is
sufficiently severe or pervasive [so as] to alter the conditions of
[his] educational environment.” Doe v. Miami Univ., 882 F.3d
579, 590 (6th Cir. 2018) (internal quotations marks and citations
omitted). Here, the statute of limitations analysis for Plaintiffs’
deliberate indifference claim applies with equal force to any
separately asserted hostile-environment theory of liability
because Plaintiffs were certainly aware by the time they
graduated that their educational experiences were permeated by
a sexually hostile environment. Indeed, any claim would fail on
the merits were Plaintiffs unaware. Doe v. Univ. of Dayton, 766
F. App’x 275, 283 (6th Cir. 2019) (“We hesitate to deem an
35a
prove, that the school had actual knowledge of
actionable sexual harassment and that the school’s
deliberate indifference to it resulted in further
actionable sexual harassment against the studentvictim, which caused the Title IX injuries.”4
Kollaritsch v. Mich. State Univ. Bd. of Trustees, 944
F.3d 613, 618 (6th Cir. 2019). In other words,
the plaintiff must establish “two separate
components, comprising separate-but-related torts by
separate-and-unrelated tortfeasors: (1) ‘actionable
harassment’ by [someone associated with the school];
and (2) a deliberate-indifference intentional tort by
the school.” Id. at 619–20; see also Davis v. Monroe
Cty. Bd. of Edu., 526 U.S. 629, 633 (1999); Foster v.
Bd. of Regents of Univ. of Mich., 982 F.3d 960, 965
(6th Cir. 2020).
The actionable sexual harassment must be “so
severe, pervasive, and objectively offensive that it
effectively bars the victim’s access to an educational
environment hostile to a plaintiff when there is no evidence that
plaintiff was aware of what occurred.” (internal quotation marks
and citation omitted)).
Accordingly, the Court does not
undertake a separate statute of limitations analysis with respect
to Plaintiffs’ Title IX claim to the extent it is based on a sexually
hostile environment theory.
4
Kollaritsch
involved
student-on-student
sexual
harassment. 944 F.3d at 618. The standard set forth in that
case applies to Title IX cases involving teacher-on-student
sexual harassment as well, however, because the standards for
each type of deliberate indifferent claim are the same. See
Williams ex rel. Hart v. Paint Valley Local Sch. Dist., 400 F.3d
360, 367 (6th Cir. 2005) (“It is clear from a reading of Gebser and
Davis, that the Court is discussing only one standard for
‘deliberate indifference’ in Title IX pupil harassment cases and
not . . . one standard for student-on-student harassment and a
less stringent standard for teacher-on-student harassment.”).
36a
opportunity or benefit.” Foster, 982 F.3d at 965
(quoting Davis, 526 U.S. at 633).
To prove the deliberate indifference tort, the
plaintiff must show four elements: “(1) knowledge,
(2) an act, (3) injury, and (4) causation.” Kollaritsch,
944 F.3d at 621. First, the plaintiff must show that
the school had “actual knowledge of an incident of
actionable sexual harassment that prompted or
should have prompted a response.” Id. Second, the
plaintiff must show that the school’s response was
“‘clearly unreasonable in light of the known
circumstances,’ thus demonstrating the school’s
deliberate indifference to the foreseeable possibility of
further actionable harassment of the victim.” Id.
(quoting Davis, 526 U.S. at 648). Third and fourth,
the school’s unreasonable response must cause the
specific injury of “deprivation of access to the
educational opportunities or benefits provided by the
school . . . . Emotional harm standing alone is not a
redressable Title IX injury.” Id. The causation and
injury elements are met if the “injury is attributable
to the post-actual-knowledge further harassment,
which would not have happened but for the clear
unreasonableness of the school’s response.” Id. at 622
(citing Davis, 526 U.S. at 644).
Before reaching the merits of any Title IX claim,
however, the Court must determine whether the
claim is barred by the statute of limitations.
37a
B. Title IX Statute of Limitations
As a threshold matter, the Court clarifies that
statute-of-limitations defenses may be properly
raised in a Rule 12(b)(6) motion. See Gibson v. Am.
Bankers Ins. Co., 289 F.3d 943, 946 (6th Cir. 2002);
Allen v. Andersen Windows, Inc., 913 F. Supp. 2d 490,
500 (S.D. Ohio 2012) (“Dismissal under Fed. R. Civ.
P. 12(b)(6) based on a statute-of-limitations bar is
appropriate when the complaint shows conclusively
on its face that the action is indeed time-barred.”).
“Title IX does not contain its own statute of
limitations.” Lillard v. Shelby Cty. Bd. of Educ., 76
F.3d 716, 728 (6th Cir. 1996). Title IX actions,
therefore, borrow the state statute of limitations for
personal injuries. Id. at 729. Ohio Revised Code
§ 2305.10 provides for a two-year statute of
limitations for personal injury claims. Ohio Rev. Code
§ 2305.10. Accordingly, Title IX claims in Ohio have
a two-year statute of limitations. See Adams v. Ohio
Univ., 300 F. Supp. 3d 983, 996 (S.D. Ohio 2018).
Although state law controls the duration of the
statute of limitations, federal law governs when the
claim accrues. Sharpe v. Cureton, 319 F.3d 259, 266
(6th Cir. 2003). “The ‘standard rule’ is that a cause of
action accrues ‘when the plaintiff has a complete and
present cause of action, that is, when the plaintiff can
file suit and obtain relief.’” D’Ambrosio v. Marino, 747
F.3d 378, 384 (6th Cir. 2014) (citation omitted).
In order to determine the accrual date for a Title
IX claim, the Court needs to determine when a
plaintiff has a complete and present cause of action
under Title IX. The Sixth Circuit has not considered
what triggers the statute of limitations in Title IX
cases, but it has considered the issue in cases brought
38a
under 42 U.S.C. § 1983, which, like Title IX, borrows
Ohio’s personal-injury statute of limitations (for
§ 1983 claims brought in Ohio).
Browning v.
Pendleton, 869 F.2d 989, 990 (6th Cir. 1989). In the
§ 1983 context, the Sixth Circuit has adopted the
discovery rule, which considers a plaintiff to have a
complete and present cause of action “when the
plaintiff knows or has reason to know that the act
providing the basis of his or her injury has occurred.”
E.g., D’Ambrosio, 747 F.3d at 384 (quoting Cooey v.
Strickland, 479 F.3d 412, 416 (6th Cir. 2007)); Sevier
v. Turner, 742 F.2d 262, 273 (6th Cir. 1984). In
applying the discovery rule, the Sixth Circuit is
“guided by the principle that a plaintiff has reason to
know of his injury when he should have discovered it
through the exercise of reasonable diligence.” Cooey,
479 F.3d at 416 (internal quotation marks and
citation omitted). Plaintiffs contend the discovery
rule governs the accrual date in Title IX cases as well,
but Ohio State disagrees.
There is good reason to think the Sixth Circuit
might not adopt the discovery accrual rule in Title IX
cases. Recently, in Rotkiski v. Klemm, 140 S. Ct. 355,
360 (2019), the United States Supreme Court decided
whether the statute of limitations in the Fair Debt
Collection Practices Act (“FDCPA”) was triggered by
a discovery rule. Unlike Title IX, the FDCPA contains
an explicit statute of limitations; thus, the Supreme
Court engaged in statutory interpretation when
determining if the FDCPA’s statute of limitations was
subject to a discovery rule. Id. Despite that factual
difference, the Supreme Court’s analysis in Rotkiski
is helpful because it assumed that the “standard rule
[is] that the limitations period commences when the
plaintiff has a complete and present cause of action”
39a
and that Congress legislates against that standard
rule.
Id. (quoting Graham Cty. Soil & Water
Conservation Dist. v. United States ex rel. Wilson, 545
U.S. 409, 418–19 (2005)). The Supreme Court
rejected the appellant’s request to read into the
FDCPA statute of limitations a general discovery
rule, calling such an expansive approach to the
discovery rule a “bad wine of recent vintage,” id.
(quoting TRW Inc. v. Andrews, 534 U.S. 19, 37 (2001)
(Scalia, J., concurring)), and refused to engage in
“[a]textual judicial supplementation.” Id. at 361.
Ohio State argues that Rotkiski should be read
expansively as holding that the discovery rule never
applies unless the language of the at-issue statute
explicitly mandates it. Mot. 7, ECF No. 162. Because
Title IX does not contain any statute of limitations,
let alone one that explicitly provides for a discovery
rule, Ohio State argues Rotkiski demands the Court
find Plaintiffs’ claim accrued on the date that all of
the elements of a Title IX claim came into existence
as opposed to the date Plaintiffs knew or should have
known of their injuries. Id.
The Sixth Circuit has since recognized the tension
between the Supreme Court’s language in Rotkiski
and the Sixth Circuit’s prior caselaw applying a
default discovery rule to the accrual of § 1983 claims.
See Dibrell v. City of Knoxville, Tenn., 984 F.3d 1156,
1162 (6th Cir. 2021) (contrasting the occurrence rule
with the discovery rule and observing that “[a]ny
presumption favoring that discovery rule, the
[Supreme] Court recently clarified, represents a bad
wine of recent vintage” (internal quotation marks and
citations omitted)); see also Everly v. Everly, 958 F.3d
442, 460 (6th Cir. 2020) (Murphy, J., concurring)
40a
(maintaining that “[h]istorically, courts used the
occurrence rule”).
The Sixth Circuit has not yet overturned Sevier
and other cases holding that the discovery rule is the
default rule in the § 1983 context, however. See
Dibrell, 984 F. 3d at 1162 (“Do our cases imbibing this
‘bad wine’ warrant reconsideration in light of the
Supreme Court’s recent teachings? We need not
resolve this tension now because [the plaintiff’s]
claims would be untimely either way.”). It is thus
unclear whether the Sixth Circuit would continue to
apply the discovery accrual rule in § 1983 cases or
would adopt the discovery accrual rule in Title IX
cases. Cf. Twersky v. Yeshiva Univ., 993 F. Supp. 2d
429, 438–39 (S.D.N.Y. 2014) (recognizing the
plaintiffs’ request to apply a discovery rule to a Title
IX claim “ignore[s] the continuing significance of the
‘standard rule’ that claims accrue upon existence
of a complete and present cause of action” and that
the discovery rule “remains—despite certain
departures—an exception” to the standard rule but
declining to decide whether the occurrence or
discovery rule applied); Varnell v. Dora Consol. Sch.
Dist., 756 F.3d 1208, 1210, 1215–17 (10th Cir. 2014)
(“Plaintiff’s federal claims accrued when she could file
suit and obtain relief, which was no later than when
the abuse stopped, not when she allegedly learned the
full extent of the resultant emotional injury.”);
Forrester v. Clarencevill Sch. Dist., No. 20-12727,
2021 WL 1812700, at *4 (E.D. Mich. May 6, 2021)
(“The Supreme Court has repeatedly refused to
interpose the ‘discovery rule’ to accrual standards for
federal claims.”). This Court need not definitively
decide the issue either, though, as Plaintiffs’ claim is
41a
untimely under both rules. Indeed, the accrual date
is the same under either rule.
1. Plaintiffs’ Claims are Barred under the
Occurrence Rule
Under the occurrence rule, each Plaintiff’s claim
against Ohio State accrued, at the latest, when all of
the elements of his Title IX claim were established.
In other words, each Plaintiff’s Title IX claim accrued
the moment that Plaintiff suffered the Title IX
injury—i.e., was deprived of “access to the educational
opportunities or benefits provided by” Ohio State
because of post-actual-knowledge harassment by
Strauss (which harassment would not have happened
but for the clear unreasonableness of Ohio State’s
response). Kollaritsch, 944 F.3d at 621–22; cf.
Twersky, 993 F. Supp. 2d at 439 (finding Title IX
claim accrued under the occurrence rule “when,
despite their knowledge of the abuse at the school, the
school administrators failed to take corrective actions.
In each instance, this occurred before the plaintiffs
left the school, which in all cases was more than
twenty years before this lawsuit was filed.” (citation
omitted)); Forrester, 2021 WL 1812700, at *4 (“As a
matter of law, at the time of the abuse, Plaintiffs had
‘a complete and present cause of action,’ in that ‘the
wrongful act or omission [had] result[ed] in damages’
and ‘the plaintiff[s] [had been] harmed.’” (citations
omitted)).
For the majority of Plaintiffs, the latest date on
which their Title IX injury could have occurred is the
date of their graduation or the date they dropped out
of Ohio State, for that is the latest moment they were
deprived of access to educational opportunities or
benefits provided by Ohio State as a result of Ohio
42a
State’s deliberate indifference. See Compl. ¶ 439,
ECF No. 157 (“OSU’s actions and inactions had the
systemic effect of depriving Plaintiffs . . . of the
educational benefits afforded to them through their
enrollment in the University.”). Plaintiffs in this case
graduated, at the latest, in the late 1990s.5 Id. ¶¶ 35–
132. Even assuming the latest Plaintiff graduated in
1999, his claim would need to have been filed within
two years of graduation—by sometime in 2001.
Plaintiffs did not file their Complaint in this case
until July 16, 2018. ECF No. 1. Consequently, under
the occurrence rule, Plaintiffs’ Complaint was
untimely by at least eighteen years.
2. Plaintiffs’ Claims are Barred under the
Discovery Rule
As the Supreme Court has recognized, when the
discovery rule applies, “discovery of the injury, not
discovery of the other elements of the claim, is what
starts the clock.” Rotella v. Wood, 528 U.S. 549, 555
(2000); Amini v. Oberlin College, 259 F.3d 493, 500
(6th Cir. 2001) (In other words, “[a] plaintiff’s action
accrues when he discovers that he has been injured,
not when he determines that the injury was
unlawful.” (internal quotation marks and citation
omitted)).
5
The Court recognizes that lead Plaintiff Brian Garrett’s
claims arise out of abuse at Strauss’s off-campus clinic, rather
than abuse on Ohio State’s campus. Compl. ¶¶ 369–398, ECF
No. 1. Even assuming Mr. Garrett could state a valid Title IX
claim for the abuse he endured at Strauss’s off-campus clinic,
Mr. Garrett was molested in 1996 and graduated from Ohio
State in 1998. Id. So, under the occurrence rule, Mr. Garrett
would have had to file his action by 2000 at the latest.
43a
In Title IX cases, many courts find, for purposes of
applying the discovery rule, that the injury is the
sexual harassment or abuse such that the claim
accrues the moment a plaintiff knows or has reason to
know of the sexual harassment or abuse. See, e.g.,
Twersky v. Yeshiva Univ., 579 F. App’x 7, 9–10 (2nd
Cir. 2014) (assuming without deciding that the
discovery accrual rule applies and stating, “[w]hen
plaintiffs left [Defendant University], more than 20
years before filing this suit . . . , they were
unquestionably aware of (1) their injuries, (2) their
abusers’ identities, and (3) their abusers’ prior and
continued employment at [Defendant University].
This information was sufficient to put them on at
least inquiry notice as to the school’s awareness of and
indifference to the abusive conduct by its teachers.”
(citations omitted)); Varnell, 756 F.3d at 1216–17
(finding that a plaintiff’s Title IX claim accrued even
under the discovery rule when the plaintiff knew she
was sexually assaulted); Doe v. Univ. of Cal., No. 2:18cv-7530-SVW-GJS, 2019 WL 4229750, at *4 (C.D. Cal.
July 9, 2019) (“Even if Plaintiff generally did not learn
until recently about USC’s alleged deliberate
indifference spanning over approximately thirty
years, Plaintiff’s understanding of her injury at the
time of her examination by Dr. Tyndall means that
the statute of limitations period began to run
immediately following the examination.”); Adams v.
Ohio Univ., 300 F. Supp. 3d 983, 996 (S.D. Ohio 2018)
(finding the injury in a Title IX deliberate indifference
case was the sexual harassment by the faculty
member, which started the statute of limitations
clock); Bowling v. Holt Pub. Sch., No. 1:16-cv-1322,
2017 WL 4512587, at *2 (W.D. Mich. May 26, 2017)
(“[Plaintiff’s] claims are based on the sexual assaults
44a
by T.B., the last of which occurred on May 18, 2012.
Thus, her claims accrued, at the latest, on May 18,
2012—even if [plaintiff’s] claim is based on
Defendants’ actions or inactions in failing to protect
her from T.B. because [plaintiff] knew of Defendant’s
inaction.”); Anderson v. Bd. of Educ. of Fayette Cty.,
616 F. Supp. 2d 662, 668 (E.D. Ky. 2009) (finding
plaintiffs “were no doubt aware of the underlying
injuries of which they complain, the abuse at the
hands of employees of the Board, at the time it was
allegedly inflicted. This is to say that Plaintiffs’
causes of action accrued at the time of the alleged
abusive acts.”); Johnson v. Gary E. Miller Canadian
Cty. Children’s Juvenile Justice Ctr., No. Civ-09-533L, 2010 WL 152138, at *2 (W.D. Okla. Jan. 14, 2010)
(finding the Title IX claims “are time barred since
they accrued prior to [plaintiff’s] last date of
attendance” at the defendant school); Padula v.
Morris, No. 2:05-cv-411-MCE-EFB, 2008 WL
1970331, at *4 (E.D. Cal. May 2, 2008) (finding the
statute of limitations on plaintiff’s Title IX claim
“accrued on the last date Plaintiffs’ suffered an
incident of sexual harassment relevant to their causes
of action.” (citation omitted)); Monger v. Purdue
Univ., 953 F. Supp. 260, 264 (S.D. Indiana 1997)
(“[Plaintiff’s] Title IX claim accrued when she knew or
had reason to know of her injury—October 29, 1997,”
the date of the alleged sexual harassment); Clifford v.
Regents of Univ. of Cal., No. 2:11-cv-2935, 2012 WL
1565702, at *6 (E.D. Cal. April 30, 2012) (finding Title
IX claim accrued on the date of each alleged incident
of harassment or the date the university became
aware of the same); cf. Gilley v. Dunaway, 572 F.
App’x 303, 306 (6th Cir. 2014) (“[Plaintiff’s]
relationship with [the coach-abuser] should have
45a
aroused her suspicion that she was being sexually
abused.”).
Other courts find the injury occurs at the time the
plaintiff is deprived of educational opportunities or
benefits by the defendant school. Samuelson v.
Oregon State Univ., 725 F. App’x 598, 599 (9th Cir.
June 6, 2018) (“Here, [plaintiff’s] injury occurred, and
she was fully aware of the injury and its
consequences, when she dropped out of school in 2000.
This event started the two-year clock.”); King-White v.
Humble Indep. Sch. Dist., 803 F.3d 754, 764 (5th Cir.
2015) (assuming without deciding, for purposes of the
discovery rule, that the injury was the school’s
deliberate indifference rather than the sexual abuse
itself).
As explained above, Plaintiffs were abused from
the 1970s–1990s. Compl. ¶¶ 35–132, ECF No. 157.
So, even if the Court applied the discovery rule and
found the claims accrued when Plaintiffs knew or
should have known of their abuse, the claims accrued
on the latest date of abuse for each Plaintiff, which
occurred well before two years prior to the filing of the
Complaint. Similarly, if the Court applied the
discovery rule and considered the injury to be
Plaintiffs’
deprivation
of
the
educational
opportunities or benefits of Ohio State, Plaintiffs
knew or should have known of those injuries by the
time they graduated or dropped out of Ohio State.6
Either way, Plaintiffs’ Title IX claims are barred by
6
The accrual date under this analysis matches the accrual
date under the Occurrence Rule because Plaintiffs were
undoubtedly aware of the deprivation of educational
opportunities or benefits by the time they graduated or withdrew
from Ohio State.
46a
the statute of limitations, even under the discovery
rule.
3. Plaintiffs’ Arguments are Unavailing
Plaintiffs offer two reasons why their claims are
not barred by the statute of limitations: (1) claims do
not accrue under the discovery rule until a plaintiff
knows or should know about both the injury and
cause of the injury; and (2) the statute of limitations
is tolled due to Ohio State’s fraudulent concealment.
a. Claims Accrue Under the Discovery
Rule When a Plaintiff Knows or has
Reason to Know of His Injury
First, Plaintiffs argue that knowledge of injury is
alone insufficient to trigger accrual under the
discovery rule and that, instead, a claim does not
accrue under the discovery rule until a plaintiff knows
or should know of both his injury and its cause. Resp.
9, ECF No. 169 (quoting Fonseca v. Consol. Rail Corp.,
246 F.3d 585, 590 (6th Cir. 2001)). According to
Plaintiffs, the “cause” here is Ohio State’s deliberate
indifference, so their claims did not accrue until they
knew or should have known of their injuries and that
those injuries were caused by Ohio State’s deliberate
indifference. Resp. 9, ECF No. 169 (“[T]he relevant
inquiry here concerns when the Plaintiffs could have
first known that they were injured by OSU, and that
OSU played an actionable role in causing their
abuse.”); id. at 1 (“Plaintiffs did not know and could
not have known of OSU’s role in causing their abuse
until April 2018, at the earliest, when allegations of
an OSU cover-up surfaced in the press and OSU
retained law firm Perkins Coie to unearth the
truth.”); id. at 2 (“Plaintiffs’ Title IX claims accrued
within the last two years, as Plaintiffs only recently
47a
discovered—or even could have discovered—OSU’s
role in causing their injuries.”); id. at 4 (“[U]ntil
the May 2019 PC Report (or the April 2018
announcement of an investigation, at the earliest),
none of the Plaintiffs in this case could have known of
OSU’s role in the abuse they had suffered.”).
As the Sixth Circuit recently explained, however,
in Title IX cases, “ ‘causation’ means the ‘[a]ct’ caused
the ‘[i]njury,’ such that the injury is attributable
to the post-actual-knowledge further harassment,
which would not have happened but for the clear
unreasonableness of the school’s response.”
Kollaritsch, 944 F.3d at 622. The Sixth Circuit
explains that, “[i]mportantly, Davis does not link the
deliberate indifference directly to the injury (i.e., it
does not speak of subjecting students to injury)[.]” Id.
In other words, Plaintiffs’ Title IX injury (deprivation
of educational opportunities or benefits provided by
Ohio State) was attributable to Strauss’s abuse, and
Plaintiffs knew both of the injury and its cause (the
abuse), which was sufficient to put them at least on
inquiry notice to determine whether the injury would
have occurred but for Ohio State’s deliberate
indifference. See King-White, 803 F.3d at 762–63
(“Even if we assume that the relevant injury was the
conduct of HISD and the School Officials rather than
the sexual abuse itself, [p]laintiffs had sufficient
awareness of that conduct prior to the spring of 2011
for their claims to accrue. . . . A.W. was sadly quite
aware of the abuse she suffered, and she was also
aware that her abuser was her teacher. . . . [A]
reasonable person who knew that her daughter was
living with a teacher, and who had already lodged
complaints with administrators that had gone
unheeded, would have investigated further.”);
48a
Twersky, 579 F. App’x at 10 (“[P]laintiffs maintain
that they could not have discovered defendants’
deliberate indifference to sexual abuse before
defendant Lamm’s admissions in a December 2012
interview . . . . This conclusion is belied by the fact
that nine plaintiffs brought their own abuse to the
attention of Lamm or other administrators. To the
extent these administrators rebuffed their complaints
or otherwise failed to take adequate remedial action,
plaintiffs were thus aware more than three years
before filing this suit of a potential claim for
deliberate indifference. Further, these circumstances
put plaintiffs at least on inquiry notice as to
administrators’ knowledge of and deliberate
indifference to other abuse.” (citation omitted));
Forrester, 2021 WL 1812700, at *7 (“[E]ven assuming
that Plaintiffs were not aware of all the facts needed
to prove that ‘the District acted with deliberate
indifference to [the] assaults,’ Plaintiffs’ claims
accrued when they became aware of their injuries and
the abuse.” (citations omitted)); Anderson, 616 F.
Supp. 2d at 668 (“Plaintiffs’ causes of action accrued
[under the discovery rule] at the time of the alleged
abusive acts.”).7 Plaintiffs’ argument that the statute
7
As noted above, some cases describe the injury triggering
accrual as the abuse itself (rather than the deprivation of
educational opportunities and benefits) and thus find a claim
accrues on the date a plaintiff knew or should have known he or
she was abused. Plaintiffs argue that, if the pertinent inquiry
for the discovery rule is when Plaintiffs knew or should have
known they suffered abuse, it is not reasonable to infer that
Plaintiffs were aware of the abuse prior to 2018. Resp. 18, ECF
No. 169. Specifically, Plaintiffs state that “Perkins Coie needed
to hire two independent doctors to provide input on the medical
necessity or appropriateness of Strauss’s reported procedures.”
Id. The Court rejects Plaintiffs’ argument that the Complaint
49a
of limitations did not begin to run until they learned
of Ohio State’s deliberate indifference via the Perkins
Coie report is therefore incorrect as a matter of law.8
b. Plaintiffs’ Claims are not Tolled by the
Fraudulent Concealment Doctrine
Plaintiffs also argue that Ohio State’s “long-term
concealment of its misconduct creates a basis
plausibly alleges Plaintiffs did not know or should not
reasonably have known they were sexually abused until the
issuance of the Perkins Coie report. The Complaint is replete
with allegations that Plaintiffs were concerned by Strauss’s
abuse and felt violated by it, discussed the abuse with
teammates, classmates, or family members, reported the abuse
themselves, or that the abuse caused them immediate mental
and emotional distress. E.g., Am. Compl. ¶¶ 168, 182, 205, 214–
18, 232, 234–35, 242, 247, 268, 270–71, 280–83, 298, 301, 331–
33, 382, 386–87, 444, 483, 503, 543–44, 665, ECF No. 157. All of
these allegations directly undercut the notion that Plaintiffs
were “not aware that Strauss’s conduct was not medically
necessary and that it was, in fact, sexual assault” until the
Perkins Coie report was published. Id. ¶ 391. Unfortunately,
the very effect the abuse had on Plaintiffs (i.e., that it was
enough to deprive them of the educational opportunities or
benefits from Ohio State) was sufficient to put them on at least
inquiry notice that they suffered abuse and that the abuse might
not have happened but for Ohio State’s deliberate indifference.
8
Plaintiffs’ argument that they had no reason to know of
Ohio State’s deliberate indifference until the announcement in
2018 of its internal investigation is also defeated by the factual
allegations in their own Complaint. For example, Plaintiffs
allege that Strauss’s behavior was an open secret, that athletes
would openly “joke” about his abuse, and that rumors of his
abuse permeated Ohio State. Resp. 16, ECF No. 169; Compl.
¶¶ 147–48, 246, 284, 475, 519, 646, ECF No. 157. Plaintiffs also
knew that Strauss continued to be employed at Ohio State
despite this widespread knowledge, which was enough to put
them on inquiry notice of Ohio State’s deliberate indifference to
his horrific and predatory behavior.
50a
for tolling.” Resp. 2, ECF No. 169. The fraudulent
concealment doctrine tolls a limitations period “where
a defendant impermissibly conceals its wrongdoing
from the plaintiff.” Lutz v. Chesapeake Appalachia,
LLC, 807 F. App’x 528, 530 (6th Cir. 2020) (citing
Doe v. Archdiocese of Cincinnati, 849 N.E.2d 268,
278–79 (2006)). To toll the statute of limitations
based on fraudulent concealment, a plaintiff must
show “(1) a factual misrepresentation, (2) that
the misrepresentation is misleading, (3) that the
misrepresentation induced actual reliance that was
reasonable and in good faith, and (4) that it caused
detriment to the relying party.” Lutz, 807 F. App’x at
530–31 (citing cases). The fourth factor means that
fraudulent concealment cannot toll the statute of
limitations where the plaintiff “knew or should have
known all of the elements of potential causes of
action.” Archdiocese of Cincinnati, 849 N.E.2d at 279;
see also King-White, 803 F.3d at 764 (“The estoppel
effect of fraudulent concealment ends, however, when
a party learns of facts, conditions, or circumstances
which would cause a reasonably prudent person to
make inquiry, which, if pursued, would lead to
discovery of the concealed cause of action.” (internal
quotation marks and citations omitted)); Anderson,
616 F. Supp. 2d at 670 (observing, in a discussion of
whether fraudulent concealment can toll the statute
of limitations that “the plaintiff is always under the
duty to exercise reasonable care and diligence to
discover whether he has a viable legal claim, and any
fact that should arouse his suspicion is equivalent to
actual knowledge of his entire claim.” (internal
quotation marks and citations omitted)).
Even if Plaintiffs had adequately pleaded the first
three factors, they have not done so for the fourth. As
51a
explained above, Plaintiffs were aware of all the
elements of their cause of action by the late 1990s.
That is, they knew of the injury, the identity of the
perpetrator, and the perpetrator’s employer. See
Archdiocese of Cincinnati, 849 N.E.2d at 279
(concluding that the fraudulent concealment doctrine
was inapplicable where the plaintiff, a victim of
sexual abuse, “at all times knew the identity of his
alleged perpetrator and knew the employer of his
alleged perpetrator”). Because Plaintiffs have known
for decades about the elements of their cause of
action, any alleged misrepresentation or concealment
by Ohio State did not prevent them from investigating
or pursuing their claims. The cases on which
Plaintiffs rely are inapposite because they do not
analyze Ohio law. See, e.g., Lozano v. Baylor Univ.,
408 F. Supp. 3d 861, 904 (W.D. Tex. 2019). Therefore,
the fraudulent concealment doctrine does not toll the
limitations period for Plaintiffs’ claims.
c. This Analysis Applies Equally to any Title
IX Claims brought under a Theory of
Hostile Environment or Heightened Risk
Plaintiffs also arguably allege a separate theory of
Title IX liability based on Ohio State’s creation and
perpetuation of a sexually hostile environment. The
Sixth Circuit has stated that “[h]ostile environment
[Title IX] claims are distinct from deliberate
indifference [Title IX] claims.” Doe v. Univ. of Ky., 959
F.3d 246, 251 n.3 (6th Cir. 2020). “A Title IX hostileenvironment claim is analogous to a Title VII hostileenvironment claim,” and, to state such a claim, a
plaintiff “must allege that his educational experience
was permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or
52a
pervasive [so as] to alter the conditions of his
educational environment.” Doe v. Miami Univ., 882
F.3d 579, 590 (6th Cir. 2018) (internal quotations
marks and citations omitted).
Here, the statute of limitations analysis for
Plaintiffs’ post-assault deliberate indifference claim
applies with equal force to any separately asserted
hostile-environment theory of liability because
Plaintiffs were certainly aware by the time they
graduated that their educational experiences were
permeated by a sexually hostile environment. Indeed,
any claim would fail on the merits were Plaintiffs
unaware. Doe v. Univ. of Dayton, 766 F. App’x 275,
283 (6th Cir. 2019) (“We hesitate to deem an
environment hostile to a plaintiff when there is no
evidence that plaintiff was aware of what occurred.”
(internal quotation marks and citation omitted)).
Similarly, Plaintiffs purport to assert a Title IX
claim based on “pre-assault” deliberate indifference,
which Plaintiffs sometimes style as a “heightened
risk” claim. Ohio State is correct that Plaintiffs have
not cited any case law suggesting the Sixth Circuit
recognizes a “heightened risk” theory of Title IX
deliberate indifference. The Court has independently
found no cases in which the Sixth Circuit has
recognized such a theory, although some district
courts within the Sixth Circuit have at least
recognized the possibility of asserting such a theory of
liability. E.g., Doe v. Hamilton Cty. Bd. of Edu., 329
F. Supp. 3d 543 (E.D. Tenn. 2018); Doe v. Mich. State
Univ., No. 1:18-cv-390, 2019 WL 5085567 (W.D. Mich.
Aug. 21, 2019); Doe 1 v. Cleveland Metro. Sch. Dist.
Bd. of Edu., No. 1:20-cv-1695, 2021 WL 1334199 (N.D.
Ohio Apr. 9, 2021).
53a
Under this theory, Plaintiffs contend that even if
they were aware of Ohio State’s deliberate
indifference to their own complaints of sexual abuse
by Strauss, they had no reason to know that Ohio
State’s deliberate indifference to the complaints made
by other, prior students heightened the risk that these
Plaintiffs would be assaulted in the first place. They
contend that they had no reason to know that Ohio
State heightened the risk they would be sexually
assaulted until 2018, when Ohio State announced
that it hired Perkins Coie to investigate Strauss’s
wide-spread abuse.
Even if the Sixth Circuit recognizes a heightened
risk theory of liability under Title IX, Plaintiffs’
claims in this case are barred by the statute of
limitations. In cases where the heightened-risk claim
is based on a university’s deliberate indifference to
prior complaints of student-on-student harassment, it
makes sense that a plaintiff may have no reason to
suspect the school’s knowledge of, and deliberate
indifference to, prior complaints until a subsequent
investigation, admission, or news report breaks.
Here, however, the perpetrator was an employee
of Ohio State.
Not only that, but Plaintiffs’
complaints make clear that Strauss’s abuse was
widely known amongst both students and faculty.
This general knowledge is enough to have put
Plaintiffs on notice that Ohio State may have received
complaints about Strauss in the past and yet
continued employing him. Accordingly, even if the
Sixth Circuit recognizes a heightened risk theory of
liability, Plaintiffs’ claims are time-barred. Univ. of
Cal., 2019 WL 4229750, at *4 (“Even if Plaintiff
generally did not learn until recently about USC’s
alleged deliberate indifference spanning over
54a
approximately thirty years, Plaintiff’s understanding
of her injury at the time of her examination by
Dr. Tyndall means that the statute of limitations
period began to run immediately following the
examination.”); but see, e.g., Hernandez v. Baylor
Univ., 274 F. Supp. 3d 602 (W.D. Texas Apr. 17, 2017)
(“[l]t was not until January 2016 that Plaintiff first
knew that, based on her allegations, Baylor could
have stopped or prevented her assault. Plaintiff’s preassault claim is therefore not time-barred.”); Dutchuk
v. Yesner, No. 3:19-cv-136-HRH, 2020 WL 5752848, at
*5 (D. Alaska Sept. 25, 2020) (finding heightened risk
claim timely because “[p]laintiffs have alleged that
they each first became aware of the University of
Alaska’s deliberate indifference to Yesner’s repeated
misconduct when a formal report was finally issued in
March 2019.” (internal quotation marks and citation
omitted)); Jameson v. Univ. of Idaho, No. 3:18-cv-451DCN, 2019 WL 5606828, at *8 (D. Idaho Oct. 30, 2019)
(“[l]t is plausible that [plaintiff] had no reason to
further investigate her heightened-risk claim until
after the release of the Independent Report and the
subsequent media coverage in 2018.”).
V. CONCLUSION
For these reasons, the Court is compelled to
dismiss Plaintiffs’ claims as barred by the statute of
limitations.9 In the words of the Supreme Court of
Ohio:
We conclude as we began: however
reprehensible the conduct alleged, these
9 The Court therefore does not address whether Brian
Garrett can otherwise state a claim under Title IX or whether
punitive damages are available.
55a
actions are subject to the time limits created
by the Legislature. Any exception to be made
to allow these types of claims to proceed
outside of the applicable statutes of
limitations would be for the Legislature, as
other States have done.
Archdiocese of Cincinnati, 849 N.E.2d at 279–80
(internal quotation marks and citations omitted). At
all times since the filing of these cases, the Ohio
legislature had the power, but not the will, to change
the statute of limitations for these Plaintiffs. For all
the reasons stated above, however, the Court is
compelled to GRANT Ohio State’s motion. The Clerk
is DIRECTED to enter judgment for Ohio State and
close the case.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
56a
[Filed September 22, 2021]
[2021 WL 7186149]
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Nicholas Nutter, et al.,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:19-cv-2462
Judge Michael H.
Watson
Magistrate Judge
Deavers
OPINION AND ORDER
In this case, twenty-seven named plaintiffs and
nineteen unnamed plaintiffs (together, “Plaintiffs”)
sue The Ohio State University (“Ohio State”) based on
sexual abuse they suffered at the hands of Dr. Strauss
(“Strauss”) while students at Ohio State. Am. Compl.,
ECF No. 33. They sue Ohio State under the following
theories of Title IX liability: (1) hostile environment;
(2) deliberate indifference; (3) heightened risk; and (4)
retaliation (brought by non-party Michael DiSabato
and Plaintiff Mark Coleman). Id. ¶¶ 479–513; 527–
41. It appears Plaintiffs base each Title IX theory on
both the abuse by Strauss and the highly sexualized
environment that generally existed within Larkins
Hall. Id. Plaintiffs also assert a stand-alone claim of
fraudulent concealment, id. ¶¶ 514–26, and a claim
for violation of their Fourteenth Amendment
Substantive Due Process rights by way of 42 U.S.C.
§ 1983. Id. ¶¶ 542–51. Ohio State moves to dismiss
all claims. Mot. Dismiss, ECF No. 36. Plaintiffs
57a
responded and moved in the alternative to amend,
Resp. ECF No. 40, and Ohio State replied. Reply,
ECF No. 42.
After the motion to dismiss was fully briefed, the
Court was notified that the following Plaintiffs
elected to settle their claims: Nicholas Nutter,
Dunyasha Yetts, Adam DiSabato, Michael Rodriguez,
Matthew Dalgleish, Vincent DiSabato, and John Doe
16 (“Settling Plaintiffs”). Accordingly, this Opinion
and Order does not apply to Settling Plaintiffs, and
they will dismiss their claims in due course.
As to the remaining Plaintiffs, the Court
GRANTS Ohio State’s motion to dismiss for the
reasons set forth in the Opinion and Orders issued in
Garrett and Ratliff, Case Nos. 2:18-cv-692, 2:19-cv4746. The reasons requiring dismissal in those cases
apply equally to this case. See, e.g., Am. Compl.
¶¶ 62, 65, 67–68, 83, 85–86, 88, 91, 94, 98, 104, 113–
14, 116, 119–23, 125, 128, 132, 136, 141, 144, 148,
150–51, 156, 158–59, 161, 163–64, 166, 174, 176, 179,
186, 189–91, 193, 199, 203, 205, 210, 213, 215–18,
220, 224, 227–29, 231, 233, 234–37, 239, 242, 244–46,
248, 252, 254, 258, 262, 264–65, 268, 274–76, 278–79,
282, 287, 289, 294, 298, 301, 303, 309–11, 313, 314,
319, 322–25, 328, 331–35, 339, 341, 342, 344, 346–47,
349, 356, 359–60, 362, 366, 368, 372–73, 375, 380–82,
384, 386, 393, 395, 402, 407–08, 417, 421, 424, 428,
455, 456, 475–76, 497, 504, 534, 537, ECF No. 33.
The Court notes that Plaintiffs’ response to Ohio
State’s motion to dismiss in this case is virtually
identical—almost word for word—to the response
filed in Ratliff. Compare Resp., ECF No. 40, Case No.
2:19-cv-2462 with Resp., ECF No. 26, Case No. 2:19cv-4746. Accordingly, to the extent Plaintiffs in this
case assert any claims or raise any arguments that
58a
are not addressed in the Garrett Opinion and Order,
the Court has addressed such claim or argument in
the Ratliff Opinion and Order.
Accordingly, the Court DISMISSES the claims of
all Plaintiffs except the settling Plaintiffs. Settling
Plaintiffs shall move to dismiss at the appropriate
time. The Clerk is DIRECTED to terminate ECF
Nos. 36 & 40.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
59a
[Filed September 22, 2021]
[2021 WL 7186198]
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Rocky Ratliff,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:19-cv-4746
Judge Michael H.
Watson
Magistrate Judge
Deavers
OPINION AND ORDER
Rocky Ratliff (“Plaintiff”) sues The Ohio State
University (“Ohio State”) based on sexual abuse
he suffered at the hands of Dr. Strauss (“Strauss”)
while a student at Ohio State. Am. Compl., ECF No.
18. Plaintiff brings a Title IX claim under various
theories: (1) hostile environment; (2) deliberate
indifference; (3) heightened risk; and (4) retaliation.1
See, e.g., Am. Compl. ¶¶ 114–33, ECF No. 18. It
1
Plaintiff includes some allegations and arguments that
Ohio State failed to report or investigate the complaints about
Strauss’s abuse. To the extent Plaintiff intends to bring a
failure-to-report theory under Title IX, Plaintiff offers nothing to
suggest the Sixth Circuit recognizes such a theory separate from
the theories Plaintiff already asserts. If, on the other hand,
Plaintiff intends to assert a failure-to-report claim under the
Clery Act, that cannot succeed because the Clery Act does not
provide a private right of action. See 20 U.S.C. § 1092(14)(A)
(“Nothing in this subsection may be construed to . . . create a
cause of action against any institution of higher education or any
employee of such an institution for any civil liability.”).
60a
appears Plaintiff bases each Title IX theory on both
the abuse by Strauss and the highly sexualized
environment that generally existed within Larkins
Hall. Id. Plaintiff also arguably asserts a stand-alone
claim of fraudulent concealment, id. ¶¶ 134–46, and a
claim for violation of his Fourteenth Amendment
Substantive Due Process rights by way of 42 U.S.C.
§ 1983. Id. ¶¶ 157–551. Ohio State moves to dismiss
the Amended Complaint. Mot. Dismiss, ECF No. 21.
I. Title IX Claims Based on Strauss’s Abuse
First, Plaintiff’s Title IX claim based on hostile
environment, deliberate indifference, and heightened
risk fails for the reasons stated in the Opinion and
Order in Garrett v. The Ohio State University, Case
No. 2:18-cv-692, to the extent the claim is based on
Strauss’s abuse of Plaintiff. The reasoning in the
Court’s Opinion and Order in Garrett applies equally
here, as Plaintiff’s Amended Complaint alleges that
he attended Ohio State from 1995–1997 and was
sexually assaulted by Strauss approximately twelve
times during his time there. Id. ¶¶ 43–44. Plaintiff’s
Complaint in this case was not filed until October 25,
2019, and, therefore, under either the occurrence rule
or the discovery rule, his Title IX claim under these
theories is time-barred.
Plaintiff offers two arguments in opposition to
dismissal based on the statute of limitations that
were either not raised or not fully developed in
Garrett, so the Court addresses them herein. Namely,
Plaintiff argues that his claim is not barred by the
statute of limitations under the continuing violations
theory and under the equitable doctrine of unclean
hands.
61a
The continuing violations doctrine does not save
Plaintiff’s claims. It is worth noting, first, that it is
unclear whether the continuing violations doctrine
even applies to Title IX claims. Doe v. Mercy Cath.
Med. Ctr., 850 F.3d 545, 566 (3d Cir. 2017) (“Some
courts suggest it does. See, e.g., Stanley v. Trs. of
California State Univ., 433 F.3d 1129, 1136 (9th Cir.
2006). Others suggest it doesn’t. See, e.g., Folkes v.
New York Coll. of Osteopathic Med., 214 F. Supp. 2d
273, 288–91 (E.D.N.Y. 2002).”). Plaintiff cites no case
where the continuing violations doctrine has been
applied to a Title IX claim.2
However, even assuming the doctrine does apply
in Title IX cases, Plaintiff’s allegations would not
trigger it. The continuing violations doctrine is “an
exception to the ordinary rule regarding the
commencement of a statute of limitations, [that]
allows for tolling based on continuing unlawful acts.”
Norman v. Granson, No. 18-4232, 2020 WL 3240900,
at *2 (6th Cir. Mar. 25, 2020) (citing Havens Realty
Corp. v. Coleman, 455 U.S. 363, 380–81 (1982)). The
Sixth Circuit has recognized two categories of
continuing violations: “(1) ‘those alleging serial
2
Plaintiff cites Bowling v. Holt Pub. Sch., No. 1:16-CV1322, 2017 WL 4512587 (W.D. Mich. May 26, 2017) as a case
that “supports a conclusion that the continuing violations theory
is applicable to the case at bar and precludes dismissal.” Reply
23, ECF No. 26. The Court disagrees with this interpretation.
If anything, Bowling is another example of the uncertainty
regarding whether the continuing violations doctrine applies to
Title IX cases, and that court simply analyzes the issue in case
it does. See id. at *2 (“This Court need not decide whether the
continuing violation doctrine applies in the context of Title IX,
because even if it does, Bowling’s allegations show that it does
not apply.”).
62a
violations’ and (2) ‘those identified with a longstanding and demonstrable policy of discrimination.’”
Id. (citing Sharpe v. Cureton, 319 F.3d 259, 266 (6th
Cir. 2003)).
For either category, a continuing
violation exists only when three requirements are
met: “(1) ‘the defendant’s wrongful conduct must
continue after the precipitating event that began the
pattern,’ (2) ‘injury to the plaintiff must continue to
accrue after that event,’ and (3) ‘further injury to the
plaintiff[ ] must have been avoidable if the defendants
had at any time ceased their wrongful conduct.’” Id.
(citing Tolbert v. Ohio Dep’t of Transp., 172 F.3d 934,
940 (6th Cir. 1999)).
Plaintiff points to “[Defendant]’s continuing
assertion of no wrongdoing by Dr. Strauss, coupled
with [Defendant]’s continued failure, until May 2019
to report wrongdoing as required by Title IX and the
Clery Act, and its admission in its letter that it did
not take action necessary to protect its students over
the years” as evidence of a continuing violation. Reply
25, ECF No. 26. Plaintiff argues that “he has been
harmed by an actual policy of discrimination held by
the Defendant, or a series of acts performed by
Defendant, to wit, continued concealment of and/or
cover up of and denial and refusal to report sexual
abuse and other unlawful conduct,” noting that “each
day that such a policy is in force is a new violation.”
Id. at 26.
Regardless of which category of continuing
violation Plaintiff attempts to invoke, Plaintiff’s
argument fails because he is unable to identify any
specific discriminatory act within the limitations
period.
Both categories require a specific
discriminatory act to have been suffered during the
applicable limitations period. Dixon v. Anderson, 928
63a
F.2d 212, 216 (6th Cir. 1991), abrogated on other
grounds by Sharpe, 319 F.3d at 268 (“[The first]
category requires a ‘current’ as well as ‘continuing’
violation: at least one of the forbidden discriminatory
acts must have occurred within the relevant
limitations period.”); Pittman v. Spectrum Health
Sys., 612 F. App’x 810, 813 (6th Cir. 2015) (The second
category requires, in addition to a longstanding and
demonstrable policy of discrimination, that plaintiff
allege they have “suffered a specific discriminatory
act within the applicable limitations period.”
(citations omitted)).
Plaintiff relies repeatedly on the Sixth Circuit’s
opinion in Roberts v. North American Rockwell
Corporation, 650 F.2d 823, 827 (6th Cir. 1981), to
support his continuing violations argument.
Specifically, Plaintiff maintains that Roberts stands
for the proposition that “the statute of limitations
begins anew each day that the discriminatory policy
remains in existence.” Reply 24, ECF No. 26.
However, the holding in Roberts has since been
clarified and limited by the Sixth Circuit. Roberts
requires that “a plaintiff prove some specific
discriminatory act within the limitations period, not
merely the existence of a discriminatory policy, to
show a continuing violation.” Wellons v. Nw. Airlines,
Inc., 25 F. App’x 214, 219 (6th Cir. 2001) (citing Dixon,
928 F.2d at 217). Plaintiff alleges no such specific act
during the statutory limitation period that would
spark a continuing violation to make these claims
timely. Indeed, all of Plaintiff’s allegations relate to
his time as a student at Ohio State, where Ohio
State’s actions caused him to “experience further
sexual molestation, assault, abuse, and harassment
and/or [become] more vulnerable to it into the
64a
future,” be “deprived . . . of access to the educational
opportunities or benefits provided by OSU,” and
which “effectively barred [Plaintiff’s] access to
educational opportunities and benefits, including a
safe educational environment and appropriate
medical care.” Am. Compl. ¶¶ 115, 116, 119, ECF No.
18. None of these claims by Plaintiff alleges any
policy that is presently impacting Plaintiff, or has
impacted Plaintiff in the statutory period, and,
therefore, these claims cannot justify a continuing
violation.
One claim by Plaintiff is pleaded as touching the
present. Plaintiff alleges that because of Ohio State’s
actions:
Plaintiff has suffered and continues to suffer
emotional distress, physical manifestations of
emotional distress, mental anguish, fear,
depression, anxiety, trauma, disgrace,
embarrassment, shame, humiliation, loss of
self-esteem, and loss of enjoyment of life,
which will continue into the future. Also,
Plaintiff was prevented from and continues to
be prevented from obtaining the full
enjoyment of life. Plaintiff has sustained and
continues to sustain loss of earnings and
earning capacity.
Finally, Plaintiff has
incurred various personal expenses.
Am. Compl. ¶ 117, ECF No. 18; see also id. at ¶¶ 133,
551. While the Court has no doubt about the truth of
Plaintiff’s claims, they unfortunately do not make the
continuing violations theory applicable in this case.
The doctrine is clear that “limitations periods begin to
run in response to discriminatory acts themselves, not
in response to the continuing effects of past
discriminatory acts.” Dixon, 928 F.2d at 216 (citing
65a
Delaware State College v. Ricks, 449 U.S. 250, 258
(1980), and United Airlines v. Evans, 431 U.S. 553,
557 (1977)).
Because Plaintiff’s only present
allegation regards the continuing effects of acts that
occurred while he was a student at Ohio State, outside
of the limitations period, these effects do not trigger a
continuing violation.
Indeed, the Ninth Circuit addressed a similar
continuing violations argument in Stanley v. Trustees
of California State University, 433 F.3d 1129 (9th Cir.
2006). There, after the plaintiff alleged that she
suffered sexual harassment at the hands of Richard
Savino, her professor and faculty advisor, she brought
suit against the trustees of her university for Title IX
claims. Id. at 1137. The Ninth Circuit found that the
continuing violation doctrine could not save her
claims. For her hostile environment Title IX claims,
the court noted that the plaintiff “[had] not alleged
that the University caused her to undergo, or be
vulnerable to, any harassment during the limitations
period, a time when she was not present at the
University.” Id. at 1137. The court further noted that
“we have never held the presence of an individual in
a workplace or institution where the plaintiff is not
present constitutes a hostile environment. The mere
speculation that if she had returned the environment
would have been hostile is not sufficient to establish
an ‘act’ by a defendant within the limitations period.”
Id. (emphasis added). While the Sixth Circuit has yet
to address the continuing violations doctrine’s
applicability to Title IX cases, the reasoning from
Stanley is persuasive. Accordingly, the continuing
violations theory is inapplicable to this case.
Neither does the clean hands doctrine aid
Plaintiff. Under the clean hands doctrine, “he who
66a
comes into equity must come with clean hands.”
Precision Instrument Mfg. Co. v. Auto. Maint. Mach.
Co., 324 U.S. 806, 814 (1945). That is, the clean hands
doctrine prevents a party from asserting an equitable
claim or defense if that party is “tainted with
inequitableness or bad faith relative to the matter in
which he seeks relief.” Id.
A statute of limitations defense, however, is a legal
defense, not an equitable one. See Grover by Grover
v. Eli Lilly & Co., 33 F.3d 716, 719 (6th Cir. 1994)
(describing the statute of limitations as an “absolute
legal defense”); Allen v. Abbott Labs., No. CIV.A. 11146-DLB, 2012 WL 10508, at *7 (E.D. Ky. Jan. 3,
2012) (noting that the statute of limitations is an
“absolute legal defense”); see also Rushing v. Yazoo
Cty., No. 3:18CV764TSL-RHW, 2020 WL 4587047, at
*8 (S.D. Miss. May 8, 2020), aff’d sub nom. Rushing v.
Yazoo Cty. by & through Bd. of Supervisors of Yazoo
Cty., No. 20-60462, 2021 WL 2390378 (5th Cir. June
10, 2021) (rejecting an argument that the clean hands
doctrine could bar a statute of limitations defense
because the statute of limitations is a legal defense).
Because the statute of limitations is a legal, not
equitable defense, the clean hands doctrine is also
inapplicable.
II. Title IX Claims Based on Environment at
Larkins Hall
To the extent Plaintiff asserts a Title IX hostile
environment, deliberate indifference, or heightened
risk claim against Ohio State based on the sexually
hostile environment that generally existed in Larkins
Hall apart from Strauss’s abuse, the Court concludes
such claim is similarly untimely.
67a
Plaintiff’s Amended Complaint states that he and
the other wrestlers used Larkins Hall during the time
they were enrolled at Ohio State. See Am. Compl. ¶ 8,
ECF No. 18. It further alleges that, at Larkins Hall,
numerous individuals would, inter alia, “shower with
the wrestlers, stare at the wrestlers, and excessively
lather their genital area.” Id. ¶ 9. Some even
masturbated in the shower area. Id. ¶ 10. People
would also watch the wrestlers from bathroom stalls
or while in the sauna, and many would explicitly
solicit the victim-students for dates or sexual activity.
Id. ¶¶ 10–11. “Members of the OSU wrestling team
and OSU wrestling coaching staff consistently
discovered male on male sexual encounters in the
locker room, bathroom, sauna facilities, spiral
staircase, and wrestling room.” Id. ¶ 12. In fact, the
hostile environment was so blatant that Plaintiff’s
head wrestling coach talked to the wrestlers about
how “they needed to look out for one another in
Larkins Hall” and stated that he was “doing
everything possible to get the wrestling team to a new
facility and a better training environment.” Id. ¶ 52.
Accordingly, Plaintiff has pleaded that he was
aware of the sexually hostile environment in Larkins
Hall—which, by his own admission “was so severe,
pervasive, and objectively offensive that it deprived
[Plaintiff] of access to his educational opportunities
and/or benefits provided by [Ohio State],” id. ¶ 123—
during the time he was enrolled at Ohio State. He
was also on notice that the head coach was attempting
to work with the University to secure a new facility
for the team given the hostile environment, which is
enough to put Plaintiff on notice at that time that
Ohio State was likely aware of the complaints
regarding the hostile environment. Accordingly, to
68a
the extent Plaintiff’s Title IX claims are based on the
general environment at Larkins Hall, as opposed to
the prolific abuse perpetrated by Strauss specifically,
the claim is still untimely for the reasons stated in the
Garrett Opinion and Order, which apply equally to
the general environment at Larkins Hall.
III. Title IX Retaliation Claim
Plaintiff also brings a Title IX retaliation claim
based on actions that occurred in 2019. Am. Compl.
¶¶ 148–56.
Defendant moves to dismiss the
retaliation claim, inter alia, on the basis that Plaintiff
has not alleged he suffered any adverse school-related
action. Mot. Dismiss 17, ECF No. 21.
Defendant is correct. Although the Sixth Circuit
has never established the elements of a Title IX
retaliation claim in a published case, it has assumed
(in both published and unpublished opinions) that “a
Title IX plaintiff must show that (1) [s]he engaged in
protected activity; (2) [the funding recipient] knew of
the protected activity; (3) [s]he suffered an adverse
school-related action, and (4) a causal connection
exists between the protected activity and the adverse
action.” Bose v. Bea, 947 F.3d 983, 988 (6th Cir. 2020)
(internal quotation marks and citation omitted;
alterations in original).
Here, Plaintiff does not allege (nor could he) an
adverse school-related action because the alleged
retaliation took place decades after Plaintiff
graduated. See Am. Compl. ¶¶ 149–56, ECF No. 18.
This claim therefore fails.
IV. 42 U.S.C. § 1983 Claim
Plaintiff’s § 1983 claim fails as well because, inter
alia, Ohio State is entitled to Sovereign Immunity.
69a
The Eleventh Amendment provides, “[t]he
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.” U.S. Const. Amend. XI.
“It has long been settled that the Eleventh
Amendment applies not only to suits brought against
a State by a citizen of ‘another State,’ but also to suits
brought by a citizen against the State in which he or
she resides.” Lee Testing & Eng’g, Inc. v. Ohio Dept.
of Transp., 855 F.Supp.2d 722, 725 (S.D. Ohio 2012)
(citing Hans v. Louisiana, 134 U.S. 1(1890)). Thus,
the Eleventh Amendment “bars all suits, whether for
injunctive, declaratory or monetary relief, against the
state and its departments.” Thiokol Corp. v. Mich.
Dep’t of Treasury, 987 F.2d 376, 381 (6th Cir. 1993).
When suits are filed against state agencies or state
officials in their official capacities, they “should be
treated as suits against the State.” Hafer v. Melo, 502
U.S. 21, 25 (1991); Will v. Michigan Dep’t of State
Police, 491 U.S. 58, 70 (1989).
Here, it is undisputed that Ohio State is an arm of
the State of Ohio. See Galli v. Morelli, 277 F. Supp.
2d 844, 856, n. 13 (S.D. Ohio 2003) (“[T]his Court has
repeatedly concluded that OSU is an ‘arm or alter ego’
of the State of Ohio, and thus protected by the
Eleventh Amendment.”). Consequently, Ohio State is
immune from suit under the Eleventh Amendment.
Plaintiff’s arguments to the contrary fail to
persuade. First, Plaintiff argues that Congress
abrogated Eleventh Amendment immunity when it
passed Title IX. The Court agrees with Plaintiff that
this is well settled. However, Plaintiff’s argument
regarding Title IX is irrelevant to whether Ohio State
70a
is entitled to Sovereign Immunity for Plaintiff’s
§ 1983 claim. Plaintiff’s contention that Congress
abrogated Eleventh Amendment immunity in § 1983
claims is incorrect. E.g., Will v. Mich. Dept. of State
Police, 491 U.S. 58, 66 (1989) (“That Congress, in
passing § 1983, had no intention to disturb the States’
Eleventh Amendment immunity and so to alter the
federal-state balance in that respect was made clear
in our decision in Quern.”).
Plaintiff next asserts that a state waives Eleventh
Amendment immunity for § 1983 claims. This is a
misstatement of the law. Although a state may waive
its sovereign immunity in a § 1983 suit, Ohio State
has not done so here and has, instead, specifically
invoked sovereign immunity as a defense.
Third, Plaintiff contends that § 1983 allows for
monetary damages against state employees. While
this is accurate insofar as sovereign immunity is no
bar to suits for monetary relief against state
employees in their personal capacities, Plaintiff is
suing only a state entity, not a state employee.
Accordingly, this argument is inapposite.
Finally, Plaintiff argues that the Eleventh
Amendment does not bar prospective injunctive relief.
It seems that Plaintiff is trying to invoke the Ex parte
Young exception, under which “a federal court can
issue prospective injunctive and declaratory relief
compelling a state official to comply with federal law.”
S & M Brands, Inc. v. Cooper, 527 F.3d 500, 507–08
(6th Cir. 2008) (quotation marks and internal
citations omitted). However, the Ex parte Young
exception applies only to state officials, not to state
entities. Id.; see also Sims v. Univ. of Cincinnati, 46
F. Supp. 2d 736, 737 (S.D. Ohio 1999), aff’d, 219 F.3d
559 (6th Cir. 2000) (citing Seminole Tribe of Fla. v.
71a
Fla., 517 U.S. 44, 58 (1996)) (“The type of relief sought
is irrelevant to the issue of whether a suit against the
state or a state agency is barred by the Eleventh
Amendment.”). Because Plaintiff is suing only a state
entity—and because he does not seek injunctive
relief—he cannot rely on the Ex parte Young doctrine
to save his claims.
For each of the above reasons, Plaintiff’s § 1983
claim is barred by sovereign immunity and must be
dismissed pursuant to Federal Rule of Civil Procedure
12(b)(1).
V. Fraudulent Concealment
Finally, Plaintiff’s fraudulent concealment claim
fails. To begin, to the extent that Plaintiff asserts a
fraudulent concealment claim as an independent
cause of action, that claim is dismissed without
prejudice. As discussed herein, all of Plaintiff’s
federal claims have been dismissed. The remaining
fraudulent concealment claim is a state-law claim,
and so the Court declines to exercise its supplemental
jurisdiction over it.
Although the Court does have discretion to
maintain supplemental jurisdiction, “a federal court
that has dismissed a plaintiff’s federal-law claims
should not ordinarily reach the plaintiff’s state-law
claims.” Rouster v. Cty. of Saginaw, 749 F.3d 437, 454
(6th Cir. 2014); see also Osborn v. Haley, 549 U.S. 225,
245 (2007). “When all federal claims are dismissed
before trial, the balance of considerations usually
will point to dismissing the state law claim. . . .”
Musson Theatrical, Inc. v. Fed. Exp. Corp., 89 F.3d
1244, 1254–55 (6th Cir. 1996). A district court shall
“consider and weigh several factors” when
determining whether to exercise supplemental
72a
jurisdiction, including the “values of judicial economy,
convenience, fairness, and comity.” Gamel v. City of
Cincinnati, 625 F.3d 949, 951 (6th Cir. 2010) (citing
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350
(1988)). District courts can also consider factors such
as: whether the plaintiff engaged in manipulation by
dismissing federal claims; whether discovery had
been completed; the degree of familiarity the court
has with the issues; and if the court had invested
significant time in the decision. Gamel, 625 F.3d at
952.
On balance, the Court finds the weight of these
factors is against the continued exercise of
supplemental jurisdiction. Although the Court does
have familiarity with this case, the other factors
weigh against the continued exercise of supplemental
jurisdiction over the state-law claim. First, all federal
claims have been dismissed, and only a state-law
claim remains. Second, while the Court may have
presided over this case for almost two years, the case
is still in relative infancy; for example, the parties
have not yet submitted a Rule 26(f) report, and no pretrial deadlines have been set. Third, whether Ohio
courts even recognize a stand-alone claim for
fraudulent concealment is an unclear issue best left
for the state courts to determine. Compare Richards
v. St. Thomas Hosp., 492 N.E.2d 821, 824, n.3 (1986)
(stating that, outside of statute, there is no claim for
fraudulent concealment) with Milner v. Biggs, 522 F.
App’x 287, 294 (6th Cir. 2013) (analyzing a claim
for fraudulent concealment under the same standard
as a claim for fraud). Finally, there is “a strong
presumption in favor of dismissing supplemental
claims” once the federal claims have been dismissed.
Musson Theatrical, Inc., 89 F.3d at 1255. These
73a
factors taken together weigh against the continued
exercise of supplemental jurisdiction. Accordingly,
the Court declines to exercise supplemental
jurisdiction over any stand-alone state-law
fraudulent concealment claim.
Neither does fraudulent concealment toll the
statute of limitations on Plaintiffs’ Title IX claim in
this case, for the reasons addressed in Garrett.
VI. Leave to Amend
Plaintiff’s request for leave to amend is denied
because amendment would be futile.
VII. Conclusion
For the reasons addressed above, Plaintiff’s Title
IX claim is DISMISSED WITH PREJUDICE.
Plaintiff’s § 1983 claim and fraudulent concealment
claim are DISMISSED WITHOUT PREJUDICE.
The Clerk shall enter judgment for Defendant and
terminate this case.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
74a
[Filed October 25, 2021]
[2021 WL 7186267]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Does 151–166,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:20-cv-3817
Judge Michael H.
Watson
Magistrate Judge
Preston Deavers
OPINION AND ORDER
Plaintiff 162 (“Plaintiff”) is the only remaining
plaintiff in this case. Plaintiff sues The Ohio State
University (“Ohio State”) based on sexual abuse he
suffered at the hands of Dr. Strauss (“Strauss”) when
he visited Ohio State as a high school student.
Amend. Compl., ECF No. 28. He sues Ohio State
under a Title IX heightened risk theory. Id. ¶¶ 156–
76. It appears Plaintiff bases his Title IX theory on
the abuse by Strauss and Ohio State’s
contemporaneous response—or lack thereof—when it
learned about that abuse. Id. Ohio State moves to
dismiss all claims. Mot. Dismiss, ECF No. 31.
Plaintiff responded, Resp. ECF No. 34, and Ohio State
replied. Reply, ECF No. 37.
The Court GRANTS Ohio State’s motion to
dismiss for the reasons set forth in the Opinions and
Orders issued in Garrett and Ratliff. Case Nos. 2:18cv-692 and 2:19-cv-4746. The reasons requiring
75a
dismissal in those cases apply equally to this case.
See, e.g., Amend. Compl. ¶¶ 10, 13, 28, 31, 71–88, 115,
124–25, ECF No. 28.
Finally, the Court does not address the standing
arguments. Whether Plaintiff has standing to sue
under Title IX as a non-student is irrelevant in light
of the Court’s conclusion that the claim is barred by
the statute of limitations.
The Court hopes that, notwithstanding the Court’s
ruling on the statute of limitations issue and fact that
Ohio State’s voluntary settlement program has
closed, Ohio State will stand by its promise to “do the
right thing,” and continue settlement discussions
with Plaintiff.
The Clerk is DIRECTED to enter judgment for
Ohio State and close the case.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
76a
[Filed October 25, 2021]
[2021 WL 7186246]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Does 172–191, et
al.,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:21-cv-2121
Judge Michael H.
Watson
Magistrate Judge
Preston Deavers
OPINION AND ORDER
In this case, twenty plaintiffs (“Plaintiffs”) sue The
Ohio State University (“Ohio State”) based on sexual
abuse they suffered at the hands of Dr. Strauss
(“Strauss”) while students at Ohio State. Amend.
Compl., ECF No. 8. They sue Ohio State under the
following theories of Title IX liability: (1) heightened
risk; and (2) hostile environment. Id. ¶¶ 356–384. It
appears Plaintiffs base each Title IX theory on the
abuse by Strauss, the sexually charged environment
at Larkins Hall, and Ohio State’s contemporaneous
response—or lack thereof—when it learned about
both. Id. Ohio State moves to dismiss all claims.
Mot. Dismiss, ECF No. 9. Plaintiffs responded, Resp.
ECF No. 14, and Ohio State replied. Reply, ECF No.
17.
The Court GRANTS Ohio State’s motion to
dismiss for the reasons set forth in the Opinions and
77a
Orders issued in Garrett and Ratliff. Case Nos. 2:18cv-692 and 2:19-cv-4746. The reasons requiring
dismissal in those cases apply equally to this case.
See, e.g., Amend. Compl. ¶¶ 13, 28, 31, 43–270, 310,
312, 319, 321, 345–55, ECF No. 8.1
Plaintiffs also argue that the filing of the Garrett
Complaint tolled their statute of limitations under
American Pipe & Constr. Co. v. Utah, 414 U.S. 538
(1974). Resp. 17–18, ECF No. 14. Given that the
Court has already dismissed the claims in Garrett as
barred by the statute of limitations, this argument is
unpersuasive.
The Court hopes that, notwithstanding the Court’s
ruling on the statute of limitations issue and fact that
Ohio State’s voluntary settlement program has
closed, Ohio State will stand by its promise to “do the
right thing,” and continue settlement discussions
with Plaintiffs.
The Clerk is DIRECTED to enter judgment for
Ohio State and close the case.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
1
John Doe 182 attended Ohio State from 1981–85, but
apparently returned to graduate in 2020. Amend. Compl. ¶ 152,
ECF No. 8. However, all of the harms which he experienced
occurred during his time at Ohio State in the 1980s. Id. ¶¶ 153–
55. In spite of his late graduation date, then, the analyses in
Garrett and Ratliff applies equally to him.
78a
[Filed October 25, 2021]
[2021 WL 7186262]
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Does 192–217,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:21-cv-2527
Judge Michael H.
Watson
Magistrate Judge
Preston Deavers
OPINION AND ORDER
In this case, twenty-six plaintiffs (“Plaintiffs”) sue
The Ohio State University (“Ohio State”) based on
sexual abuse they suffered at the hands of Dr. Strauss
(“Strauss”) while students at Ohio State. Amend.
Compl., ECF No. 14. They sue Ohio State under the
following theories of Title IX liability: (1) heightened
risk; and (2) hostile environment. Id. ¶¶ 414–42. It
appears Plaintiffs base each Title IX theory on the
abuse by Strauss, the sexually charged environment
at Larkins Hall, and Ohio State’s contemporaneous
response—or lack thereof—when it learned about
both. Id. Ohio State moves to dismiss all claims. Mot.
Dismiss, ECF No. 15. Plaintiffs responded, Resp.
ECF No. 20, and Ohio State replied. Reply, ECF No.
23.
The Court GRANTS Ohio State’s motion to
dismiss for the reasons set forth in the Opinions and
Orders issued in Garrett and Ratliff. Case Nos. 2:18-
79a
cv-692 and 2:19-cv-4746. The reasons requiring
dismissal in those cases apply equally to this case.
See, e.g., Amend. Compl. ¶¶ 13, 28, 31, 43–327, 367,
369, 378, 403–413, ECF No. 14.
Plaintiffs also argue that the filing of the Garrett
Complaint tolled their statute of limitations under
American Pipe & Constr. Co. v. Utah, 414 U.S. 538
(1974). Resp. 15–16, ECF No. 20. Given that the
Court has already dismissed the claims in Garrett as
barred by the statute of limitations, this argument is
unpersuasive.
Finally, the Court does not address the standing
arguments. Whether the non-student Plaintiffs have
standing to sue under Title IX is irrelevant in light of
the Court’s conclusion that the claims are barred by
the statute of limitations.
The Court hopes that, notwithstanding the Court’s
ruling on the statute of limitations issue and fact that
Ohio State’s voluntary settlement program has
closed, Ohio State will stand by its promise to “do the
right thing,” and continue settlement discussions
with Plaintiffs.
The Clerk is DIRECTED to enter judgment for
Ohio State and close the case.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
80a
[Filed October 25, 2021]
[2021 WL 7186208]
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael Alf, et al.,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:21-cv-2542
Judge Michael H.
Watson
Magistrate Judge
Preston Deavers
OPINION AND ORDER
In this case, thirteen plaintiffs (“Plaintiffs”) sue
The Ohio State University (“Ohio State”) based on
sexual abuse they suffered at the hands of Dr. Strauss
(“Strauss”) while students at Ohio State. Compl.,
ECF No. 1. They sue Ohio State under Title IX. Id.
¶¶ 392–428. It appears Plaintiffs base the Title IX
claim on the abuse by Strauss and Ohio State’s
contemporaneous response—or lack thereof—when it
learned about the same. Id. Ohio State moves to
dismiss all claims. Mot. Dismiss, ECF No. 9.
Plaintiffs responded, Resp. ECF No. 13, and Ohio
State replied. Reply, ECF No. 14.
The Court GRANTS Ohio State’s motion to
dismiss for the reasons set forth in the Opinions and
Orders issued in Garrett and Ratliff. Case Nos. 2:18cv-692 and 2:19-cv-4746. The reasons requiring
dismissal in those cases apply equally to this case.
See, e.g., Compl. ¶¶ 8, 35–47, 58, 63–75, 111, 115,
120–24, 132–34, 219, 248, 258, 272–76, ECF No. 1.
81a
Plaintiffs also argue that the filing of the Garrett
Complaint tolled their statute of limitations under
American Pipe & Constr. Co. v. Utah, 414 U.S. 538
(1974). Resp. 7–9, ECF No. 13. Given that the Court
has already dismissed the claims in Garrett as barred
by the statute of limitations, this argument is
unpersuasive.
Finally, the Court does not address the punitive
damages arguments.
Whether Plaintiffs could
recover punitive damages is irrelevant in light of the
Court’s conclusion that their claim is barred by the
statute of limitations.
The Court hopes that, notwithstanding this ruling
on the statute of limitations issue and fact that Ohio
State’s voluntary settlement program has closed,
Ohio State will stand by its promise to “do the right
thing,” and continue settlement discussions with
Plaintiffs.
The Clerk is DIRECTED to enter judgment for
Ohio State and close the case.
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
82a
[Filed October 25, 2021]
[2021 WL 7186260]
UNITED STATES DISTRICT COURT,
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Michael Canales, et al.,
Plaintiffs,
v.
The Ohio State
University,
Defendant.
Case No. 2:21-cv-2562
Judge Michael H.
Watson
Magistrate Judge
Preston Deavers
OPINION AND ORDER
In this case, Michael Canales and John Doe 20
(collectively “Plaintiffs”) sue The Ohio State
University (“Ohio State”) based on sexual abuse they
suffered at the hands of Dr. Strauss (“Strauss”) while
students at Ohio State. Compl., ECF No. 1. Plaintiffs
assert the following claims: (1) violations of Title IX;
(2) violations of Title IX, deliberate indifference; (3)
fraudulent concealment; (4) violations of Title IX,
unlawful retaliation; and (5) constitutional rights
violations pursuant to 42 U.S.C. § 1983. Id. ¶¶ 106–
80. It appears Plaintiffs base their claims on the
abuse by Strauss, the sexually charged environment
at Larkins Hall, and Ohio State's contemporaneous
response—or lack thereof—when it learned about
both. Id. Ohio State moves to dismiss all claims.
Mot. Dismiss, ECF No. 9. Plaintiffs responded, Resp.
ECF No. 11, and Ohio State replied. Reply, ECF No.
13.
83a
As an initial matter, Plaintiffs move for leave to
file their response to Defendant's motion after the
deadline to do so. The Court notes that Plaintiffs'
motion complies with neither the local rules nor the
Undersigned's standing orders. Nonetheless, the
motion is GRANTED, and the Court considers
Plaintiffs' response.
Turning to Defendant's motion to dismiss, the
Court GRANTS Ohio State's motion for the reasons
set forth in the Opinions and Orders issued in Garrett
and Ratliff. Case Nos. 2:18-cv-692 and 2:19-cv-4746.
The reasons requiring dismissal in those cases apply
equally to this case. See, e.g., Compl. ¶¶ 5, 8–16, 44–
55, 67, 82, 92, 94–100,106–180, ECF No. 1.
The Court hopes that, notwithstanding this ruling
and the fact that Ohio State's voluntary settlement
program has closed, Ohio State will stand by its
promise to “do the right thing,” and continue
settlement discussions with Plaintiffs.
The Clerk is DIRECTED to enter judgment for
Ohio State and close the case
IT IS SO ORDERED.
/s/ Michael H. Watson
MICHAEL H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
84a
20 U.S.C. § 1681
§ 1681. Sex
(a) Prohibition
against
discrimination;
exceptions
No 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, except that:
(1) Classes of educational institutions
subject to prohibition
in regard to admissions to educational
institutions, this section shall apply only to
institutions of vocational education, professional
education, and graduate higher education, and to
public institutions of undergraduate higher
education;
(2) Educational institutions commencing
planne
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