Opinion
CIVIL ACTION NO: 03-2199 SECTION: "R" (4)
April 19, 2004
ORDER AND REASONS
Before the Court are the following motions: the motion to dismiss by defendant Board of Trustees of Loyola University of New Orleans ("Loyola"), Loyola's motion to dismiss plaintiff's first amended and supplemental complaint, the motion to dismiss of defendant Board of Supervisors of Louisiana State University and Agricultural and Mechanical College ("LSU"), and plaintiff's motion to amend petition and join additional parties. Defendants both filed motions to dismiss, and then plaintiff amended his complaint to correct errors in his original complaint and to add additional allegations. In response, Loyola filed a motion to dismiss the amended complaint, and LSU filed a reply memorandum that addresses plaintiff's additional allegations in his amended complaint. The Court therefore considers defendant's motions to dismiss as motions to dismiss plaintiff's amended complaint. For the following reasons, the Court grants defendants' motions to dismiss, dismisses plaintiff's federal claims with prejudice, and dismisses plaintiff's state law claims without prejudice. Further, the Court denies plaintiff's motion for leave to amend his petition to join additional parties.
I. Background
Plaintiff asserts the following in his amended complaint. Plaintiff was a law student at LSU from August through November, 2000. He states that he was defamed and sexually harassed at LSU. He believed that as a law student, he had to have sex with another law student to be accepted and to be able to continue his studies at LSU. He alleges that a rumor spread around LSU that he had either raped another student or had impregnated her and refused to acknowledge paternity.
Complaint, ¶ 3; Amend. Complaint, ¶ 117.
Complaint, ¶ 3; Amend. Complaint, ¶ 118-119.
Complaint, ¶ 17.
Plaintiff alleges that while at LSU, he was subjected to sexual harassment by two women, Victoria Monier, also known as Victoria McDaniel, and Marlene Allgood. Monier allegedly engaged plaintiff in conversations on sexually deviant topics. Menard avers that Allgood sexually harassed him on numerous occasions. As one example, Menard states that Allgood asked what actions in Louisiana give rise to absolute liability, and plaintiff volunteered "Blasting." He states that in response, she stared at him, pointed at her crotch, and said "Pile driving and blasting . . . You asked for it, buddy." As another example of this alleged sexual harassment, plaintiff states that Allgood told the following joke to two students after class, delivering the punch line inches from his face: "Why is sex like a misdemeanor? . . . Because the more I miss it, da meaner I get." In addition, at a conference with Menard to discuss his legal writing assignment, Allgood allegedly said "sex, sex, sex," while she "fluttered her fingers in the Plaintiff's face."
Amend. Complaint, ¶¶ 118-119, 127-127(d). Menard does not specify who these women are. Menard implies that Allgood taught a legal writing class, but plaintiff does not indicate whether she taught this class at LSU.
Id. at ¶ 119.
Id. at ¶ 127.
Id. at ¶ 127(a).
Id.
Id. at ¶ 127(b).
Id. at ¶ 127(d).
In addition, plaintiff asserts that Howard L'Enfant, who plaintiff believes is the Dean of Student Affairs at LSU, said during class meetings, "You have to find a hug buddy for hot and sweaty activities . . . It relieves the stress of law school."
Id. at ¶ 137(b).
Menard withdrew from LSU and looked into a transfer to Loyola Law School. Plaintiff admits that he may have had a "psychotic break" around this time. A few days after Menard inquired into transferring to Loyola, a man allegedly followed Menard home in a car in an attempt to intimidate him. Menard states that he later identified this man as Jim Sutherland, a maintenance supervisor at Loyola.
Complaint, ¶ 5.
Id. at ¶ 4.
Id. at ¶¶ 10, 24.
Id.
Loyola accepted plaintiff's application to transfer, and Menard enrolled at Loyola during the fall semester in 2001. At orientation in August of 2001, Professor Lassiegne allegedly motioned directly at Menard and said "Trash, trash, trash." Plaintiff also asserts that numerous other comments were directed at him that seemed to relate to events that occurred at LSU. Plaintiff alleges that during the first few weeks at Loyola, female law students made sexual overtures towards him. As an example of one such overture, Menard states that another student, whom he knew as Jane Doe, listed things she liked and concluded the list with "good sex" while shaking her fist in front of his face. He also states that women would look at him and fiddle with their hair, which he interpreted to be a sexual overture. He asserts that women walked behind him and said "You have to," which he interpreted to mean that he had to have sex. He avers that men walked behind him and said "You'll slip up," and he believed these comments referred to the rumors at LSU that he had raped or impregnated another student.
Id. at ¶ 12.
The Court notes that in his petition, Menard identifies Professor Lassiegne and numerous other individuals by last name only.
Id. at 1 13.
Id. at 1 15.
Id. at ¶ 18.
Id.
Id. at ¶ 19.
Id. at ¶ 21.
Id. at ¶ 23.
Menard gave Professor Derbigny of the Southern Poverty Law Clinic at Loyola a chronology of events that transpired at LSU to determine if he had a cause of action against LSU. Menard states that as a result, Dean Jumonville called plaintiff to his office and informed him that Loyola wanted him to undergo psychological counseling. Plaintiff asserts that this was completely unwarranted and a part of the effort to "permanently defame him." Menard met with a Loyola staff psychologist until the end of the semester. He contends that this counseling was detrimental to his emotional health, and this intentional interference with his emotional health was so severe that he was unable to personally pursue any claims against LSU.
Id. at ¶ 25.
Id. at ¶ 27.
Id. at ¶ 26, 28.
Id. at ¶ 29, 31.
Id. at ¶ 33.
Menard states that he performed poorly on his final examinations and was assigned to the "Academic Assistance" program. He alleges that while at a program meeting, the professor asked another student if she had heard of the nickname "The Violator," and the student admitted that she had made up the nickname. Menard contends that this nickname was directed at him and referred to the rumors at LSU. Another student allegedly called him "The Violator" a few days later.
Id. at ¶ 34.
Id. at ¶ 35.
Id.
Id. at ¶ 36.
Plaintiff asserts that a secretary in the dean's office at Loyola told him that she volunteered at a local children's hospital during her lunch hour and said "Imagine that, a five-year-old, all alone in a room." Menard contends that this statement referred to rumors that he wanted to have sex with children. He concluded, admittedly for no apparent reason, that Lawrence Moore, one of Menard's professors, compelled the secretary to make this reference. Menard decided to test his hypothesis that Moore instigated the secretary's comment and visited Moore in his office twice. Menard admits that Moore made no sexual gestures during the first visit but alleges that during the second visit, Moore rubbed something in his thigh area with both hands, out of Menard's sight. Plaintiff alleges that during this second visit, he had asked about dropping out of Moore's class, and Moore's actions constituted an explicit request for sexual favors in exchange for allowing Menard to drop the course with no penalty and a tuition refund.
Id. at ¶ 37.
Id. at ¶ 38.
Id. at ¶ 40, 43.
Id. at ¶ 45, 48.
Id. at ¶ 49.
Plaintiff avers that Moore spread a rumor that plaintiff sexually gratified him, and this rumor caused plaintiff to suffer emotionally. Further, plaintiff was allegedly subjected to several homosexual overtures as a result. He states that Professor Viator motioned between his chest and plaintiff's chest with his hand, which plaintiff interpreted to mean "you and I, sex." Another professor allegedly stood in the front of his class, pointed at Menard and said "I'll come to your house. I'll meet you on a Saturday," and another time, this professor said "There are some people that say Professor Neilson goes both ways, the common and the civil law." Menard interpreted these comments to be homosexual overtures. Menard alleges that female faculty members also made sexual overtures towards him. For example, Professor Medina allegedly wrote "Anytime Ernest" in the center of the chalkboard and then circled it, and she told him "I can get you money, you can finish law school comfortably . . . We can discuss your civil rights afterwards."
Id. at ¶ 55.
Id. at ¶ 59.
Id.
Id. at ¶ 63.
Id. at ¶ 66.
Id.
Further, Menard states that several male students made sexual advances towards him. Menard asserts that Reynolds Blankenship, a male student, was seated across from him, and Blankenship looked at him and "humped his hips while simultaneously poking his tongue into the inside of his cheek." Other male students allegedly looked at Menard and poked their tongues into the inside of their cheeks too.
Id. at ¶ 68.
Id. at ¶ 69.
Id.
In October 2002, Menard played a "practical joke" on Moore. He left a cage with a gerbil and "insertion device" in the Pine Street Cafe, which was in a Loyola building across the street from the law school, with a card that said "God makes us what we are . . . Isn't it nice to know he has a sense of humor?" Plaintiff alleges that Moore appeared to be enraged by the practical joke, and plaintiff was emotionally distressed by Moore's severe reaction to a "harmless prank."
Id. at ¶ 74.
Id.
Id. at ¶ 75.
Menard also avers that he suspected that Loyola was intercepting his emails. He asserts that he inserted certain phrases, such as "J'aime," into his emails to test his hypothesis, and he later heard professors use these phrases. In addition, Menard sent an email to a female student, in which he told her that he wanted to write about her inappropriate behavior that involved a Coke bottle, but he disliked the idea of "Father Moore pounding his pud to my 'e-mail.'" The next day, on October 18, 2002, Menard was summoned to a meeting with Dean Jumonville, Dean Klebba and Moore. They allegedly informed plaintiff that three students had complained about emails from him and discussed plaintiff's other inappropriate behavior, such as leaving the gerbil for Moore. They also allegedly forbid Menard from speaking with or initiating contact with another student, Naomi Nichols. Plaintiff alleges that this meeting was an attempt to "cover up" for Moore, and forbidding him from contacting Nichols was an attempt to keep him from discovering that Moore had been intercepting his email correspondence to Nichols.
Id. at ¶ 64.
Id. at ¶ 64-65.
Id. at ¶ 76.
Id. at ¶ 81.
Id. at ¶ 78, 81.
Menard states that on October 25, 2002, he met with Drs. Christopher Flynn and Vicki McNeil, who gave him a choice between a medical withdrawal from the law school or a disciplinary hearing. He asserts that he opted to face a disciplinary hearing, but the doctors instead forced him to take a medical withdrawal immediately. Plaintiff contends that he was forced to take a medical withdrawal so that he would be discredited in any future civil or criminal proceedings.
Id. at ¶ 87.
Id.
Id.
After he left Loyola, plaintiff allegedly continued to be harassed. For example, Menard asserts that he received many phone calls in January and February of 2003, during which the other party would "make the sound of a rifle bullet exiting a barrel" and then hang up. He also asserts that the Louisiana State Police questioned him in connection with homicides that had occurred in Baton Rouge, Louisiana and that he was followed by members of a "Joint Serial Killer Task Force." Menard avers that the harassment is related to the events that transpired at LSU and Loyola. In his amended complaint, Menard alleges that on April 15, 2003, someone entered his bedroom and "mounted" him, and his wife later identified the assailant as a neighbor, a police office in St. John the Baptist Parish.
Id. at ¶ 107.
Id. at ¶ 108; Amend. Complaint, 1 108(a)
Complaint, ¶ 110.
Amend. Complaint, ¶ 113.
Plaintiff Ernest Menard filed this pro se complaint against defendants Loyola and LSU, in which he alleges violations of various federal and state laws. Menard alleges sexual harassment under 20 U.S.C. § 1681 and conspiracy under 42 U.S.C. § 1985 to violate his civil rights by condoning and fostering sexual harassment. He also alleges a conspiracy to violate other civil rights, including, inter alia, his right to privacy and his right to travel, as well as a conspiracy to violate and violation of his rights under 18 U.S.C. § 2520, which authorizes civil damages. for victims of illegal interception of wire, electronic and oral communications. Plaintiff also alleges numerous claims under Louisiana state law grounded in tort and breach of contract. Menard seeks damages, including damages for loss of future earnings and punitive damages, and he seeks reinstatement as a Loyola law student.
Menard alleges a claim under 28 U.S.C. § 1985, a non-existent statute. The Court construes his complaint liberally and construes his claim as a claim under 42 U.S.C. § 1985. See United States v. Riascos, 76 F.3d 93, 94 (5th Cir. 1996) (noting that courts should construe pro se complaints liberally).
Defendants LSU and Loyola now move to dismiss plaintiff's amended complaint. LSU moves to dismiss on the grounds that Menard's complaint fails to state a claim and, in the alternative, his claims are barred by the statute of limitations. Loyola moves to dismiss because there are no reasonable factual bases for plaintiff's allegations. Both parties oppose plaintiff's motion to amend his petition to join additional parties because he fails to state a claim against the parties.
II. Discussion
A. Motion to Dismiss
In a motion to dismiss for failure to state a claim under Rule 12(b) (6), the Court must accept all well-pleaded facts as true and view the facts in the light most favorable to the plaintiff. See Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996); American Waste Pollution Control Co. v. Browning-Ferris, Inc., 949 F.2d 1384, 1386 (5th Cir. 1991). The Court must resolve doubts as to the sufficiency of the claim in plaintiff's favor. See Vulcan Materials Company v. City of Tehuacana, 238 F.3d 382, 387 (5th Cir. 2001). Dismissal is warranted if it appears certain that the plaintiff cannot prove any set of facts in support of his claim that would entitle him to relief. See id.; Piotrowski v. City of Houston, 51 F.3d 512, 514 (5th Cir. 1995) (quoting Leffall v. Dallas Indep. Sch. Dist., 28 F.3d 521, 524 (5th Cir. 1994)).
B. LSU
1. Conspiracy
Menard alleges a conspiracy under 42 U.S.C. § 1985 to violate his civil rights. Section 1985(3) provides:
If two or more persons in any State or Territory conspire . . . for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; . . . in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.
LSU argues that Menard fails to state a claim against it under Section 1985 because it is entitled to Eleventh Amendment immunity from any such liability. The United States Fifth Circuit Court of Appeals has held:
The Eleventh Amendment bars a state's citizens from filing suit against the state or its agencies in federal courts. When a state agency is the named defendant, the Eleventh Amendment bars suits for both money damages and injunctive relief unless the state has waived its immunity. By statute, Louisiana has refused any such waiver of its Eleventh Amendment sovereign immunity regarding suits in federal courts. See LA. REV. STAT. ANN. § 13:5106(A).Cozzo v. Tangipahoa Parish Council-President Government, 279 F.3d 273, 280-81 (5th Cir. 2002) (citations omitted). Courts consider defendant LSU to be an arm of the state for purposes of Eleventh Amendment immunity. See Johnson v. State of La., 2002 WL 1398659, *2 (E.D.La.); Otis v. LSU Medical Center, 2001 WL 290166, *4 (E.D.La.); Schuth v. La. State Univ. Medical Center, 1989 WL 65566, *7 (E.D.La.). Accordingly, LSU is immune from liability on plaintiff's Section 1985 claim, and the Court dismisses this claim. Cf. Schuth, 1989 WL 65566, at *7 (finding Eleventh Amendment barred Section 1985 claims against LSU).
Even if Eleventh Amendment immunity did not bar defendant's Section 1985 claim against LSU, Menard's claim would fail because LSU is not a "person" under Section 1985. Section 1985 requires a conspiracy between two or more "persons." See 42 U.S.C. § 1985. To determine the meaning of "person" under Section 1985, courts can look to jurisprudence on the meaning of "person" under Section 1983. See Sturdza v. United Arab Emirates, 281 F.3d 1287 (B.C. Cir. 2002) (citing Section 1983 case, Owens v. Haas, 601 F.2d 1242, 1247 (2nd. Cir. 1979), in support of conclusion that defendant is not a person under Section 1985 because "sections 1983 and 1985 are interpreted consistently with each other"). A state agency and its employees acting in their official capacities are not "persons" within the meaning of Sections 1983 and 1985. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989) (Section 1983); Austin v. State Industrial Ins. System, 939 F.2d 676, 678 (9th Cir. 1991) (Sections 1983 and 1985). This further supports the Court's conclusion that Menard fails to state a claim under Section 1985 against LSU.
2. Sexual Harassment
Menard also alleges sexual harassment against LSU under 20 U.S.C. § 1681. Section 1681 provides that, with some exceptions:
The Court notes that the Eleventh Amendment does not shield LSU from claims under Title IX, 20 U.S.C. § 1681, et seq. See 42 U.S.C. § 2000d-7; Pederson v. La. State Univ., 213 F.3d 858, 876 (5th Cir. 2000).
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[.]
LSU argues that the statute of limitations bars plaintiff's Title IX claims against it. Because Title IX does not contain a statute of limitations, courts turn to state law to determine the limitations period. See Chance v. Rice Univ., 1991 WL 296636, *4 (S.D.Tex.). LSU does not cite, nor is the Court able to find, a case in which the court utilized Louisiana law to determine the limitations period for a Title IX claim. The Court notes, however, that plaintiff alleges sexual harassment, and Louisiana courts apply the one-year limitations period applicable to delictual actions to sexual harassment claims. See LA.C.C. art. 3492; Bustamento v. Tucker, 607 So.2d 532, 537 (La. 1992); Weathersby v. Jacquet, 2001-1567, 813 So.2d 1135, 1139 (La.App. 3 Cir. 4/3/02). Consequently, the Court applies a one-year limitations period here. Cf. Boquet v. Lafourche Parish Sheriff's Office, 2000 WL 1511179, *1 (E.D.La.) (noting that because plaintiff's claim under 42 U.S.C. § 1983 for sexual harassment "is best characterized as a tort under Louisiana law, it is governed by the one-year prescriptive period for delictual actions dictated by Louisiana Civil Code article 3492"). The question of when a cause of action accrues is a question of federal law, and the Fifth Circuit has held that in civil rights cases, a cause of action commences when the plaintiff "knows or has reason to know of the injury which is the basis for the action." Kline v. N. Tax. State Univ., 782 F.2d 1229, 1232 (5th Cir. 1986) (internal quotations omitted).
Here, all of the events that transpired at LSU occurred during Fall of 2000.In his complaint, Menard states that "[w]ithin weeks after matriculating at Loyola," he approached Professor Derbigny of the Southern Poverty Law Clinic with a chronicle of events that occurred at LSU to determine whether he had a cause of action. Plaintiff enrolled at Loyola in Fall of 2001. Accordingly, plaintiff clearly believed as of the Fall of 2001 at the latest that he had been sexually harassed at LSU. Plaintiff filed this action against LSU and Loyola in August of 2003. The Court therefore finds that plaintiff's claims of sexual harassment against LSU are time-barred and dismisses these claims.
Complaint, ¶ 25.
3. Privacy in Electronic Communications
Plaintiff alleges a claim under 18 U.S.C. § 2520. The Fifth Circuit has generally described Section 2520:
In relevant part, [18 U.S.C.] § 2511(1)(a) proscribes "intentionally intercept[ing] . . . any wire, oral, or electronic communication", unless the intercept is authorized by court order or by other exceptions not relevant here. Section 2520 authorizes, inter alia, persons whose electronic communications are intercepted in violation of § 2511 to bring a civil action against the interceptor for actual damages, or for statutory damages of $10,000 . . . or $100 per day of the violation, whichever is greater. 18 U.S.C. § 2520.Steve Jackson Games, Inc. v. United States Secret Service, 36 F.3d 457, 460 (5th Cir. 1994). Nowhere in his complaint does plaintiff allege that LSU intercepted any of his wire, oral or electronic communications. Plaintiff's only allegations of electronic mail interception are related to e-mails that he sent while he was a student at Loyola. Furthermore, Section 2520(e) provides that a "[a] civil action under this section may not be commenced later than two years after the date upon which the claimant first has a reasonable opportunity to discover the violation." 18 U.S.C. § 2520(e). More than two years has elapsed between the time that plaintiff was a student at LSU and when he filed this suit. Thus, any claims based on interception of his e-mails by LSU would not be timely. Plaintiff therefore fails to state a claim under Section 2520 against LSU, and the Court dismisses any such claims.
C. Loyola
1. Conspiracy
Menard alleges numerous claims of conspiracy under 42 U.S.C. § 1985 against Loyola. A conspiracy must be between "two or more persons." 42 U.S.C. § 1985. As discussed above, LSU is not a "person" under Section 1985, and Menard cannot maintain a conspiracy claim against Loyola alone. Moreover, even if LSU were a "person" under Section 1985, Menard alleges no facts to support a conclusion that there was any conspiracy or agreement between Loyola and LSU. Accordingly, Menard fails to state a claim against Loyola under Section 1985, and the Court dismisses all such claims.
2. Sexual Harassment
Title IX prohibits discrimination on the basis of sex by educational organizations that receive federal funds. See Owens v. Dillard Univ., 2002 WL 1822932, *2 (E.D.La.). It provides that "[n]o person . . . 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[.]" 20 U.S.C. § 1681(a). The Supreme Court has held that Title IX is enforceable through an implied right of action. USee Cannon v. Univ. of Chicago, 441 U.S. 677, 709 (1979). In Franklin v. Gwinnett County Public Sch., 503 U.S. 60 (1992), the Supreme Court held that sexual harassment of a student by a teacher constitutes actionable discrimination under Title IX. Id. at 75.
A school can be liable for damages under Title IX for a teacher's sexual harassment of a student if it acts with deliberate indifference to the harassment or otherwise fails to remedy it. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274, 290 (1998); see also Pederson v. Louisiana State University, 213 F.3d 858, 882 (5th Cir. 2000) (citing Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999)). In Gebser, the Supreme Court set forth the deliberate indifference standard under Title IX for cases that do not involve official policy of the educational institution that receives federal funds. The Court held that
in cases like this one that do not involve official policy of the recipient entity, . . . a damages remedy [against the school] will not lie under Title IX unless an official who at a minimum has authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf has actual knowledge of discrimination in the recipients programs and fails adequately to respond.524 U.S. at 290; see also Davis, 526 U.S. at 648 (defining deliberate indifference for purposes of finding school district liability under Title IX for student to student harassment as when the "response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances"). "The deliberate indifference standard is a high one." Doe v. Dallas Indep. Sch. Dist., 220 F.3d 380, 384 (5th Cir. 2000) (Doe II) (quoting Doe v. Dallas Indep. Sch. Dist., 153 F.3d 211, 219 (5th Cir. 1998) (Doe I)).
Here, plaintiff alleges sexual harassment at Loyola by Professor Moore and by other students. Plaintiff does not allege that the harassment at Loyola stemmed from an official policy. The Court therefore considers whether plaintiff has alleged facts to support a conclusion that an official with authority to address the alleged discrimination and institute corrective measures had actual knowledge of the alleged discrimination and failed to respond adequately. Plaintiff never asserts that he informed any officials at Loyola of the alleged harassment by Moore and other students. Without any allegations of actual knowledge by Loyola officials, plaintiff fails to state a claim against Loyola under 20 U.S.C. § 1681. The Court therefore dismisses plaintiff's sexual harassment claims against Loyola.
3. Electronic Communications
As discussed above, Section 2520 authorizes, inter alia, a person whose electronic communications is intercepted in violation of § 2511 to bring a civil action against the interceptor. A violation of 18 U.S.C. § 2511 does not occur if one of the parties consents to the interception. See 18 U.S.C. § 2511(2)(c), (d). In his complaint, plaintiff summarily states that he "had suspected for some time that the administration of Loyola Law School had been intercepting his e-mails." Menard provides no basis for this suspicion. He asserts that he tested this suspicion by inserting unusual phrases into his e-mails and "then just ke[pt] his ears open." As noted above, Menard avers that he sent an e-mail to a female student and inserted the phrase "J'aime" into a postscript. He alleges that, some unspecified time later, Professor Nielson said "J'aime." Plaintiff describes a similar situation with the phrase "fairly warned." Furthermore, plaintiff asserts that he sent these two e-mails in question to female students, and he also describes another e-mail that he sent to a female student in which he referred to "inappropriate behavior of hers that had something to do with a Coke bottle." He then states that Dean Klebba, Dean Jumonville, and Professor Moore called him to a meeting the next day, and Dean Klebba told him that three students had complained about e-mails from him. Plaintiff also indicates that at this meeting, Dean Klebba, Dean Jumonville, and Professor Moore forbid him from contacting another student, Naomi Nichols, and implied that Nichols had complained to the administration that she was afraid of Menard. Plaintiff's complaint alleges no facts to support a conclusion that Loyola intercepted plaintiff's e-mails. Plaintiff's allegations that he inserted an unusual phrase into his e-mail and then heard a professor use it later are simply too tenuous to support a claim under Section 2520. Indeed, plaintiff's complaint concedes that the administrators knew of his e-mails because they received complaints from the recipients, which further undermines any tenuous claim that they "intercepted" his e-mails. As a result, the Court finds that plaintiff fails to state a claim against Loyola under 18 U.S.C. § 2520 and dismisses these claims.
Complaint, ¶ 64.
Id.
Id.
Id. at ¶ 65.
Id.
Id. at ¶ 76.
D. Plaintiff's Motion to Amend
Menard moves to amend his complaint to join as additional defendants the State of Louisiana, Loyola University New Orleans, Marlene Allgood, Howard L'Enfant, and Lawrence Moore. In his motion, plaintiff does not allege any additional facts, but merely seeks to add these defendants based on the allegations contained in his complaint and amended complaint.
1. Applicable Law
Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings. Plaintiff may amend his complaint once as a matter of right before any responsive pleading has been filed, which plaintiff has already done in this case. See FED. R. CIV. P. 15(a). Thereafter, as here, subsequent amendments are permitted only with leave of the trial judge. See id. Rule 15(a) states that leave to amend shall be freely given when justice so requires. See id. However, leave to amend is not granted automatically. See Davis v. United States, 961 F.2d 53, 57 (5th Cir. 1991); Addington v. Farmer's Elevator Mut. Ins. Co., 650 F.2d 663, 666 (5th Cir. 1981). The decision whether to grant leave to amend lies within the discretion of the court. See Foman v. Davis, 371 U.S. 178, 182 (1962). In exercising its discretion, the court considers such factors as undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party, and futility of amendment. See id.
The court will treat a proposed amendment as fufile if it cannot survive a motion to dismiss for failure to state a claim under Rule 12(b)(6). See Jamieson v. Shaw, 772 F.2d 1205 (5th Cir. 1985); Emory v. Texas State Bd. of Medical Examiners, 748 F.2d 1023, 1027 (5th Cir. 1984); Pan- Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (5th Cir. 1980), abrogated on other grounds, Todorov v. DCH Healthcare Auth., 921 F.2d 1438 (11th Cir. 1991)); FED. R. CIV. P. 12(b)(6). The Court addresses whether plaintiff's complaint states a federal claim against each of the defendants that plaintiff seeks to join.
1. State of Louisiana
The only allegations in Menard's complaint and amended complaint related to the State of Louisiana are the allegations against LSU. As stated above, plaintiff fails to state a claim against LSU. Accordingly, plaintiff's complaint would fail to state a claim against the State of Louisiana, and the Court denies his motion to add this defendant as fufile. 2. Loyola University New Orleans
Menard has already named the Board of Trustees of Loyola University New Orleans as a defendant in this suit. As stated above, plaintiff fails to state a claim against Loyola. Accordingly, plaintiff's complaint would fail to state a claim against Loyola University New Orleans, and the Court denies his motion to add this defendant as fufile.
3. Marlene Allgood
At the outset, the Court notes that plaintiff never clearly identifies who Marlene Allgood is. Plaintiff obliquely implies that she is a legal writing professor at LSU but never clearly states this. The Court assumes for purposes of this motion that she is a LSU professor. Plaintiff alleges that Allgood sexually harassed him on four occasions. Plaintiff does not allege in any way that she conspired with anyone to deprive Menard of his rights or that she intercepted his e-mails. Accordingly, any conspiracy claims or claims under 18 U.S.C. § 2520 against Allgood would fail to state a claim. Any sexual harassment claims against Allgood would also be fufile because, even if the four instances that plaintiff describes did rise to the level of sexual harassment, plaintiff has failed to bring such claims timely. As noted above, the applicable statute of limitations for Title IX claims of sexual harassment is one year. In his complaint, plaintiff indicates that the four occasions on which Allgood harassed him occurred around September 2000, and he did not file his original complaint until almost three years later. Accordingly, the Court denies plaintiff's motion to join Allgood as a defendant because the amendment would be fufile.
4. Howard L'Enfant
Plaintiff believes that Howard L'Enfant is the Dean of Student Affairs at LSU. Plaintiff does not allege in any way that L'Enfant, conspired with anyone to deprive Menard of his rights or that L'Enfant intercepted his e-mails. Further, L'Enfant's alleged statement that " [y]ou have to find a hug buddy for hot and sweaty activities . . . It relieves the stress of law school" does not rise to the level of sexual harassment, and, like claims based on Allgood's alleged actions, any claims based on this comment would be barred by the statute of limitations. Accordingly, plaintiff's complaint fails to state any claims of conspiracy, sexual harassment, or e-mail interception against L'Enfant, and the Court denies plaintiff's motion to join him as a defendant.
Amended Complaint, ¶ 137(b).
5. Lawrence Moore
Plaintiff's allegations against Professor Lawrence Moore center around a visit to Moore's office, during which plaintiff asked Moore if he could drop out of Moore's class. Moore allegedly began rubbing something near his thighs. Plaintiff admits that he could not see Moore's hands, but he asserts that Moore was rubbing his genitals to implicitly request sexual gratification in exchange for allowing plaintiff to drop out of his class with no penalty. To begin with, the Court notes that plaintiff's allegations against Moore are based solely on conjecture and plaintiff's interpretation of Moore's actions that he could not even see. Moreover, although it is not explicitly clear from plaintifif's complaint, it appears that this meeting with Moore occurred in April, 2002. Thus, even if Moore's actions did rise to the level of sexual harassment, they occurred more than one-year before plaintiff filed his original complaint. Therefore the one-year statute of limitations applicable to plaintiff's Title IX claims would bar claims based on these actions. Thus, plaintiff's complaint fails to state a claim for sexual harassment against Moore.
Plaintiff indicates that he went to see Moore after a Loyola Law School secretary made certain comments to him in April of 2002. Complaint, ¶¶ 37, 40, 41.
Plaintiff complaint also fails to state a conspiracy claim against Moore. Nowhere in his complaint does Menard allege that Moore conspired with anyone else to deprive him of his rights. Further, Menard does not allege a single facts to support a claim against Moore under 18 U.S.C. § 2520. Moore was not one of the professors that allegedly used the unusual phrases that Menard inserted into his e-mails. Indeed, Menard never directly alleges that Moore intercepted his e-mails. He alleges only that Dean Klebba, Dean Jumonville and Moore forbid him from contacting Naomi Nichols, who had complained to the administration about Menard, to prevent him "from discovering the knowledge that Lawrence Moore had been intercepting electronic correspondence addressed to Ms. Nichols." This conclusory statement, wholly unsupported by any factual allegations, is insufficient to state a claim against Moore. Because plaintiff's complaint fails to state any claims of conspiracy, sexual harassment, or e-mail interception against Moore, the Court denies plaintiff's motion to join him as a defendant.
Complaint, ¶ 81.
E. State Law Claims
For the foregoing reasons, the Court dismisses plaintiff's claims under 42 U.S.C. § 1985, 20 U.S.C. § 1681, and 18 U.S.C. § 2520. Dismissal of these claims disposes of all of plaintiff's federal law claims. The Court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims, and therefore dismisses these claims without prejudice.
III. Conclusion
For the foregoing reasons, the Court grants defendants' motions to dismiss, dismisses plaintiff's federal claims with prejudice, and dismisses plaintiff's state law claims without prejudice. Further, the Court denies plaintiff's motion to amend his petition to join additional parties.