United States District Court, W.D. North Carolina, Statesville Division
Richard L. Voorhees, United States District Judge.
MATTER IS BEFORE THE COURT on Defendants' Motion
to Dismiss (Doc. 27). The parties have filed their respective
briefs (Docs. 28, 29, 30) and this matter is ripe for
disposition. For the reasons stated below, Defendants'
Motion to Dismiss (Doc. 27) is GRANTED IN
PART and DENIED IN PART.
FACTUAL ALLEGATIONS & PROCEDURAL BACKGROUND
semester of 2014, Plaintiff Frank Gulyas started his
sophomore year at Appalachian State University (“App.
State” or the “University”), a collegiate
institution within the University of North Carolina system.
(See Doc. 1 at 1). In October 2014, Plaintiff and
Melissa Costa, who lived in the same co-ed dormitory
building, commenced an exclusive dating relationship.
Id. at 2. The relationship between Plaintiff and
Costa proved rocky, and Plaintiff alleges that Costa
frequently exhibited “extreme jealousy” when she
observed other females interacting with him. Id. On
the evening of February 21, 2015, Plaintiff, a friend of
Plaintiff's, and the sister of Plaintiff's friend
attended a party. Id. The party lasted late into the
night and by the time Plaintiff left the party, his
friend's sister was unable to return to the dorm room
where she had intended to spend the night. Id.
Plaintiff invited his friend's sister to spend the night
in his dorm room, which Plaintiff's roommate also
occupied. Id. Costa learned that a female was
staying in Plaintiff's dorm room, entered Plaintiff's
room, and cursed at, yelled at, kicked, and hit Plaintiff.
Id. at 3. Costa briefly left Plaintiff's room
but, soon thereafter, reentered his room to return several of
Plaintiff's clothing items and to further berate
to Plaintiff, the events on the night of February 21, 2015
marked the official end of his and Costa's exclusive
relationship. Id. Nonetheless, Plaintiff and Costa
continued to sporadically hang out and spend nights in each
other's rooms, in what might be best described as a
casual relationship. See id. During spring break,
Plaintiff commenced a relationship with another female and
informed Costa of such once classes were back in session.
Id. Costa did not take well to this information and
sent Plaintiff a series of “increasingly angry and
hostile” texts. Id. On March 28, 2015,
approximately ten days after informing Costa of his new
relationship, Plaintiff went to Costa's dorm room to
fully end his relationship with Costa. Id. When he
arrived at Costa's dorm room, he found the door to her
room ajar, he tapped on the door, and then entered
Costa's room. Id. With Costa's roommate
present, Plaintiff and Costa commenced a conversation about
the end of their relationship. Id. During the
conversation, Costa's roommate left, Costa began to cry,
and Plaintiff attempted to comfort her by placing his hand on
her upper arms. Id. at 4. The two continued their
conversation until Costa's roommate returned, at which
point Costa and her roommate asked Plaintiff to leave.
Id. Plaintiff complied with this request and left
Costa's room. Id.
March 30, 2015, Costa filed a criminal trespassing charge
relative to Plaintiff's entry into her dorm room on March
28, 2015. Id. Costa also filed a 50B Complaint with
a motion for a domestic violence protective order (“50B
Complaint”), in which she alleged that Plaintiff
threatened to kill her and kill her family if she told people
any of his secrets. Id. On April 1, 2015, Costa
filed a second criminal charge against Plaintiff, this one
for communicating threats. See Id. In early April
2015, Costa also filed a complaint with Defendant App. State.
Id. In her complaint with App. State, Costa accused
Plaintiff of harassment, unauthorized entry into her dorm
room, making threats, and causing bodily harm. Id.
State commenced its investigation into the matter on April 8,
2015, assigning Investigator Stacy Sears to the matter.
Id. During the course of the investigation, Sears
learned of the February 21, 2015 altercation between Costa
and Plaintiff. Id. Sears reported the events of
February 21, 2015 to Defendant David J. Elrod and to
Defendant Judith Hass but was instructed to investigate only
Costa's complaint about the events of March 28, 2015 and
to omit details of the February 21, 2015 incident from her
investigation report. Relative to the February 21, 2015
incident, the investigation report, which is provided to the
University Conduct Board, read: “On the night of
February 21/22 [Plaintiff] and [Costa] had an argument and
decided to stop dating.” Id.
September 2015, proceedings on Costa's 50B Complaint
commenced, with the 50B Court taking testimony from witnesses
on Thursday, September 17 and Friday, September 18.
Id. at 5. Defendant Elrod testified at the hearing,
observed the testimony of several witnesses who provided
testimony adverse to Costa's allegations, and was aware
that the 50B Court scheduled a final day of hearing
testimony, to include the subpoenaed testimony of
Investigator Sears, for Monday October 5, 2015. Id.
On Saturday, September 19, Defendant Elrod issued Plaintiff
an “official notice” that formally advised
Plaintiff of the charges against him and informed him that
his University Conduct Board hearing was scheduled for
Friday, October 2, 2015. Id. Plaintiff moved to
continue his student conduct hearing and Defendant Elrod
denied the motion. Id. The University Conduct Board
hearing occurred on Friday, October 2, 2015, with several
students testifying but Investigator Sears not appearing.
Id. at 6. On October 5, 2015, the Rule 50B Court
held its final hearing on Costa's 50B Complaint, during
which Investigator Sears testified about the events of
February 21, 2015 and Defendant Elrod's and Defendant
Hass's directive to Sears about not including the events
of February 21 in her investigation report. Id. at
5-6. Prior to Sears's testimony at the 50B Complaint
hearing on October 5, 2015, Plaintiff was unaware that
Defendant Elrod and Defendant Hass had directed Sears not to
investigate the February 21 incident and to omit details of
the incident from the investigation report provided to the
University Conduct Board. See Id. at 4-5.
Court concluded that Costa did not present sufficient proof
to sustain her burden and dismissed her 50B Complaint.
Id. at 6. On October 7, 2015, the University Conduct
Board found Plaintiff “responsible” for
“unlawful entry” and for “acts of harm,
” suspended Plaintiff for the remainder of the fall
2015 academic term, and required Plaintiff to meet certain
conditions before he could return to App. State in a future
semester. Id. Plaintiff appealed the University
Conduct Board's decision, raising several procedural and
evidentiary challenges and noting that he was not provided a
copy of his hearing transcript for purposes of appeal.
Id. at 6-7. On November 10, 2015, Plaintiff received
a letter from Defendant Cindy A. Wallace that indicated that
his appeal had been denied. Id. at 7. On November
17, 2015, the district attorney dismissed the criminal
charges filed by Costa. Id.
January 2016, Plaintiff filed an initial action against
Defendants. Gulyas v. Appalachian State University,
Case No. 5:16-cv-00028-RLV-DSC, Doc. 1-1. After removal of
the action to federal court and with a pending motion to
dismiss by Defendants, Plaintiff voluntarily dismissed his
initial action pursuant to Fed.R.Civ.P. 41(a)(1)(A)(i).
Id. at Doc. 20. Plaintiff filed the pending
complaint in December 2016. Plaintiff's pending complaint
raises five causes of action: (1) denial of due process as
guaranteed by Article 1, Section 19 of the North Carolina
Constitution (Count One); (2) denial of due process as
guaranteed by the Fourteenth Amendment of the United States
Constitution (Count Two); (3) denial of the right to equal
protection under the law as guaranteed by the Fourteenth
Amendment of the United States Constitution (Count Three);
(4) denial of the right to equal protection under the law as
guaranteed by Article 1, Section 19 of the North Carolina
Constitution (Count Four); and (5) discrimination on the
basis of gender in violation of Title IX, 20 U.S.C. §
1681 (Count Five). Id. at 8-12. Plaintiff's
pending complaint seeks relief in the form of an order
requiring App. State to expunge his record of any suspension
and incomplete grades, compensatory damages, litigation
costs, and attorney fees. Id. at 12. Defendants move
to dismiss Plaintiff's pending complaint under
Fed.R.Civ.P. 12(b)(1) and 12(b)(6), generally arguing that
Plaintiff does not allege facts that can support a
constitutional due process violation, that Plaintiff does not
allege facts demonstrating that he was similarly situated to
another female student or that any defendant treated him
differently on the basis of his gender/sex, that Plaintiff
did not exhaust all available state law remedies before
bringing his state constitutional claims, and that the
Defendants named in their individual capacity are entitled to
qualified immunity. (Doc. 27, Doc. 28 at 7-22).
Standard of Review
reviewing a motion to dismiss, a court must examine the legal
sufficiency of the complaint; it may not resolve factual
disputes or weigh the claims and defenses against one
another. See Edwards v. City of Goldsboro, 178 F.3d
231, 243 (4th Cir. 1999). Further, a court must accept as
true all of the well-pled factual allegations contained in
the complaint. See Mylan Labs., Inc. v. Matkari, 7
F.3d 1130, 1134 (4th Cir. 1993). While Fed.R.Civ.P. 8(a) does
not require “detailed factual allegations, ” a
complaint must offer more than “naked
assertion[s]” and unadorned “labels and
conclusions.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). In order to survive a motion to dismiss, the
facts alleged must be sufficient to “raise a right to
relief above the speculative level” and “state a
claim to relief that is plausible on its face.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570
(2007). Requiring plausibility “does not impose a
probability requirement at the pleading stage, ”
id. at 556, but does demand more than a “sheer
possibility that a defendant has acted unlawfully, ”
Iqbal, 556 U.S. at 678. Ultimately, a claim is
facially plausible when the factual content allows for the
reasonable inference that the defendant is liable for the
misconduct alleged. Id.
Fourteenth Amendment Procedural Due Process
raise a procedural due process claim under the Fourteenth
Amendment, a Plaintiff must allege “(1) a cognizable
‘liberty' or ‘property' interest; (2) the
deprivation of that interest by ‘some form of state
action'; and (3) that the procedures employed were
constitutionally inadequate.” IotaXi
Chapter of Sigma Chi Fraternity v. Patterson, 566 F.3d
138, 145 (4th Cir. 2009) (quoting Stone v. Univ. of Md.
Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988)). For
purposes of their motion to dismiss, Defendants only
challenge whether Plaintiff's Complaint contains
allegations capable of supporting the third element of a
procedural due process claim. (See Doc. 28 at 7-16).
On the most basic level, due process requires that a
university student facing suspension or expulsion receive (1)
“adequate notice of the charges against him”; (2)
“the opportunity to be heard by disinterested
parties”; (3) the opportunity to be “confronted
by his accuser”; and (4) “the right to have a
record of the hearing reviewed by a student appellate
body.” Henson v. Honor Comm. of the Univ. of
Va., 719 F.2d 69, 74 (4th Cir. 1983). The opportunity to
be heard is not a pro forma requirement and, instead, entails
providing the accused student “the opportunity to be
heard at a meaningful time and in a meaningful
manner.” Matthews v. Eldridge, 424 U.S.
319, 333 (1976) (internal quotation marks omitted). The
“timing and content of the notice and the nature of the
hearing will depend on appropriate accommodation of the
competing interests involved, ” namely the risk to the
accused of the hearing resulting in an errant result and the
unfair or mistaken suspension of the accused versus the need
of the educational institution to instill order and
discipline and to foster a safe environment conducive to
learning. See Goss v. Lopez, 419 U.S. 565, 579-81
(1975) (discussing procedural due process in context of high
school setting). Ultimately, whether the procedures employed
in a given case satisfy procedural due ...