Opinion
17 Civ. 2032 (GBD)
2019-08-01
Amelia ROSKIN-FRAZEE, Plaintiff, v. COLUMBIA UNIVERSITY, Defendant.
Irwin Myron Zalkin, Alexander Solomon Zalkin, Devin Miles Storey, The Zalkin Law Firm, San Diego, CA, Robert J. Hantman, Hantman & Associates, New York, NY, for Plaintiff. Michele S. Hirshman, Darren Wright Johnson, Gabrielle Tenzer, Jordana Lauren Haviv, Paul Weiss, Roberta Ann Kaplan, Alexandra G. Elenowitz-Hess, Kaplan Hecker & Fink LLP, New York, NY, for Defendant.
Irwin Myron Zalkin, Alexander Solomon Zalkin, Devin Miles Storey, The Zalkin Law Firm, San Diego, CA, Robert J. Hantman, Hantman & Associates, New York, NY, for Plaintiff.
Michele S. Hirshman, Darren Wright Johnson, Gabrielle Tenzer, Jordana Lauren Haviv, Paul Weiss, Roberta Ann Kaplan, Alexandra G. Elenowitz-Hess, Kaplan Hecker & Fink LLP, New York, NY, for Defendant.
MEMORANDUM DECISION AND ORDER
GEORGE B. DANIELS, United States District Judge:
Plaintiff Amelia Roskin-Frazee was an undergraduate student who alleges that she was a victim of sexual assault on Defendant Columbia University's ("Columbia's") campus. Plaintiff brings this action alleging that Defendant created a culture of sexual hostility on campus and acted with deliberate indifference in responding to Plaintiff's report of sexual assaults and request for certain accommodations as a result of the assaults. (Pl.’s First Am. Compl. ("FAC"), ECF No. 57.) Plaintiff seeks to hold Defendant liable for monetary damages pursuant to Title IX, 20 U.S.C. § 1681, and several state causes of action. (Id. ) Defendant moves to dismiss Plaintiff's amended complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). (Notice of Mot. to Dismiss the Am. Compl. ("MTD Notice"), ECF No. 63.). Defendant's motion is GRANTED.
Columbia is officially incorporated under the name "The Trustees of Columbia University in the City of New York." (Mem. of Law in Supp. of Def.’s Mot. to Dismiss the Am. Compl. ("Mem."), ECF No. 64, at 1, n. 1.)
I. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff enrolled at Columbia as a freshman in the fall of 2015. (FAC ¶ 28.) She states that she was sexually assaulted twice in her dormitory room. (FAC ¶¶ 31, 55–56.) The relevant procedural and factual background is set forth in this Court's Amended Memorandum Decision and Order dated November 26, 2018 ("Nov. 2018 Decision") and incorporated by reference herein. (ECF No. 54.) Below, this Court addresses any new factual allegations in the amended complaint that are relevant to this opinion.
A. New Allegations of Columbia's General Policy of Indifference to Sexual Misconduct.
In her original complaint Plaintiff alleged that Defendant has "a history of violating Title IX when responding to reports of sexual misconduct." (FAC ¶ 6.) The new allegation in Plaintiff's amended complaint regarding this alleged "history" is that, in September 2015, one of Defendant's administrators posted on Twitter an article that "[1] indicated complainants who failed to report rape to the police were likely lying about being raped, and [2] campus sexual assault was rare." (Id. ¶ 17.) According to Plaintiff, Defendant's Title IX coordinator refused to remove this administrator from "the panel charged with adjudicating campus sexual assault cases" despite the fact that the "anti-sexual violence group No Red Tape [brought this Tweet] to Columbia's attention on August 2017." (Id. ).
B. New Allegations That Columbia Knew About Plaintiff's First Sexual Assault Before December 3, 2015.
Plaintiff's first sexual assault occurred on October 5, 2015 (the "Oct. 2015 Assault"). (Id. ¶ 31.) In its Nov. 2018 Decision, this Court found that Defendant acquired actual knowledge of this assault during a meeting on December 3, 2015, where Plaintiff shared with Defendant's executive vice president for university life, that she had been raped. (Nov. 2018 Decision at 13.) Plaintiff now adds facts to her amended complaint in support of her claim that Defendant had actual knowledge of the Oct. 2015 Assault as early as October 14, 2015. (Pl.’s Opp'n to Def.’s Mot. to Dismiss the Am. Compl. ("Opp'n"), ECF No. 65, at 5.)
1. Plaintiff's Conversations with Columbia's SVR on October 13 and 14, 2015.
In her original complaint, Plaintiff alleged that on October 13 2015, she called Defendant's 24/7 sexual violence response hotline ("SVR") to request housing and academic accommodations she needed as a result of the Oct. 2015 Assault. (FAC ¶¶ 34–35.) The SVR representative she spoke to "advised Plaintiff that she could report her rape to the police" but "Plaintiff advised that she was concerned about reporting to the police and initiating a criminal case that would become a matter of public knowledge." (Id. ¶ 34.) An hour later, Plaintiff was connected with an SVR staff advocate, and she now alleges in her amended complaint that she "explicitly told the staff advocate that she was raped in Hartley Hall, her campus dormitory." (Id. ¶ 36.)
The next day, on October 14, 2015, Plaintiff met with the SVR staff advocate and reiterated her request for housing accommodations. (Id. ¶ 37.) In her original complaint she alleged that the staff advocate told her that she would need to inform her parents that her housing was reassigned and pay up to $500. (Id. ) Now she also alleges that she specifically "asked the staff advocate if the fee or notification could be waived given Plaintiff's safety concerns staying in the room where she was recently raped." (Id. ) The staff attorney allegedly informed Plaintiff that "the fee and notification could not be waived for Plaintiff's situation and provided Plaintiff with no alternative offices to speak to about housing accommodations." (Id. )
2. Plaintiff's Meeting with Her Academic Advisor On October 14, 2015.
In her original complaint Plaintiff stated that on October 14, 2015, she had "reached out to her academic advisor" and that "[w]ithout explicitly saying that she was raped, Plaintiff strongly alluded to [her] that Plaintiff had been raped." (Compl., ECF No. 1, ¶ 39 (emphasis added).)
In her amended complaint, Plaintiff elaborates that before meeting with her academic advisor she submitted a written meeting request in which she "indicated that she was seeking information related to academic accommodations due to ‘something that happened’ recently. ’ " (FAC ¶ 41 (emphasis added).) This prompted her academic advisor to ask Plaintiff if she was "ok" during the October 14, 2015 meeting, to which Plaintiff responded that "she was scared to go into too much detail with [her] ... because she knew [the academic advisor] was a mandated reporter." (Id. ¶ 42.) The academic advisor clarified "that she was only a mandated reporter for gender-based misconduct, specifically sexual assault. Plaintiff indicated that she knew that." (Id. ) After "a long pause," the academic advisor confirmed that Plaintiff had been in touch with Columbia's SVR. (Id. )
On March 11, 2016, the academic advisor met with Plaintiff and confirmed that during the October 14, 2015 meeting she had understood that Plaintiff was sexually assaulted. (Id. ¶ 43.) She also confirmed that she shared what Plaintiff told her during that meeting with her supervisor, who told her that she had to report it. (Id. ) Accordingly, "[the academic advisor] reported Plaintiff's rape in the form of a vague Wellness Report." (Id. at 45.)
3. Plaintiff's Meeting with Her Creative Writing Professor on October 20 or 27, 2015.
In her amended complaint Plaintiff adds completely new allegations that she "reported her rape to her creative writing professor." (Id. ¶ 46.) First, she submitted a non-fiction writing assignment on October 13, 2015, in which she "described all the feelings she felt while being raped, though did not explicitly say she was raped. " (Id. (emphasis added).) On October 20, 2015, her professor provided written comments on her assignment that included the statement: "I take it you were assaulted?" (Id. ) Either that day or the following week, on October 27, 2015, Plaintiff attended her professor's office hours during which she admitted that she had been "recently sexually assaulted." (Id. ¶ 47.) On November 3, 2015, Plaintiff submitted a second non-fiction writing assignment "in which she explicitly wrote that she was raped and it occurred at Columbia in her dorm." (Id. ¶ 48.) Plaintiff therefore alleges that "[d]espite receiving actual notice ... Plaintiff's professor did not report Plaintiff's rape to the Office of Gender-Based Misconduct." (Id. ¶ 49.)
C. Plaintiff's Second Sexual Assault and Formal Reports of Both Assaults to Columbia.
On December 14, 2015 Plaintiff was sexually assaulted a second time in her dorm room. (Id. ¶ 55.) On January 19, 2016, a case manager from Defendant's student conduct and community standards office ("SCCS Office") called Plaintiff to tell her that an unidentified Columbia employee who had a duty to report sexual misconduct under the school's policies and procedures for sexual misconduct (the "Sexual Misconduct Policy") had reason to suspect that Plaintiff was the author of an anonymous survey in which she described her sexual assaults. (Id. ¶ 59.) "Plaintiff informed the case manager that she did not wish to ‘officially’ report her sexual assaults " at that time. (Id. ¶ 60 (emphasis added).) Almost seven months later, on August 5, 2016, Plaintiff formally reported her sexual assaults to the SCCS Office. (Id. ¶ 63.) "Defendant responded to her report promptly and reasonably" by conducting a one-month investigation, which "was unable to identify her assailant based on the little information [Plaintiff] had provided." (Nov. 2018 Decision at 19.) Plaintiff received a copy of the Defendant's official investigation report on October 17, 2017, ten days after the investigation concluded. (Id. )
D. Plaintiff's Lawsuit
On March 17, 2017, Plaintiff filed the instant action against Defendant alleging two separate causes of action for Title IX liability and several state causes of action based on the same underlying events. (See generally Compl.) On November 26, 2018 this Court granted Defendant's motion to dismiss Plaintiff's original complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6) without prejudice and with leave to replead. (Nov. 2018 Decision at 23.) On December 18, 2018, Plaintiff filed her amended complaint raising the same federal Title IX and state causes of action as her original complaint. (See generally FAC.) Columbia moved to dismiss the amended complaint on February 15, 2019. (See generally MTD Notice.)
II. LEGAL STANDARD
"To survive a motion to dismiss, a complaint must contain 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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). The plaintiff must demonstrate "more than a sheer possibility that a defendant has acted unlawfully." ( Id. ) Stating a facially plausible claim requires pleading facts that enable the court "to draw the reasonable inference that the defendant is liable for the misconduct alleged." ( Id. ) Thus, the factual allegations pled "must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. A district court must first review a plaintiff's complaint to identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937. The court then considers whether plaintiff's remaining well-pleaded factual allegations, assumed to be true, "plausibly give rise to an entitlement to relief." Id. ; see also Targum v. Citrin Cooperman & Co., LLP , No. 12 Civ. 6909 (SAS), 2013 WL 6087400, at *3 (S.D.N.Y. Nov. 19, 2013). In deciding the 12(b)(6) motion, the court also draws all reasonable inferences in the non-moving party's favor. See N.J. Carpenters Health Fund v. Royal Bank of Scotland Grp., PLC , 709 F.3d 109, 119–20 (2d Cir. 2013).
"In deciding a motion to dismiss under Rule 12(b)(6), the court may refer ‘to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs’ possession or of which plaintiffs had knowledge and relied on in bringing suit.’ " Fishbein v. Miranda, 670 F. Supp. 2d 264, 271 (S.D.N.Y. 2009) (quoting Brass v. Am. Film Tech., Inc. , 987 F.2d 142, 150 (2d Cir. 1993) ).
III. PLAINTIFF FAILS TO SUFFICIENTLY ALLEGE A TITLE IX CLAIM
Plaintiff alleges Title IX liability against Defendant on two grounds: first, that Defendant created a sexually hostile culture through its policies and practices (the "First Cause of Action"); and second, that Defendant acted with deliberate indifference in responding to Plaintiff's report of sexual assaults and request for certain accommodations as a result of the assaults (the "Second Cause of Action"). This Court dismissed both of these claims in the original complaint because Plaintiff failed to plausibly allege that Defendant (1) had "specific knowledge of a heightened risk of sexual assault either by her assailant or in the particular contexts in which her assaults occurred, such as an official university policy or program"; (2) had "actual knowledge" of Plaintiff's first alleged assault before December 3, 2015; and, after it had knowledge of Plaintiff's assaults, (3) responded "in a clearly unreasonable manner." (Nov. 2018 Decision at 9–11, 13–14, 14–23.) Plaintiff's amended complaint fails to remedy these fundamental flaws.
A. Title IX.
Title IX of the United States Education Amendments of 1972, 20 U.S.C. § 1681(a), provides that, "[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 any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a). The statute applies to a school's disparate provision of programs, aid, benefits or services, or the inequitable application of rules or sanctions on the basis of sex. Davis v. Monroe Cty. Bd. of Educ. , 526 U.S. 629, 646–47, 119 S.Ct. 1661, 143 L.Ed.2d 839 (1999). It also prohibits a school's deliberate indifference to acts of sexual harassment committed by one student against another. Id.
To survive a motion to dismiss, a plaintiff bringing a student-on-student sexual harassment Title IX claim must allege that: (1) a federally funded educational institution (2) was deliberately indifferent to and (3) had actual knowledge of (4) sexual harassment that was so severe, pervasive, and objectively offensive that it could be said to have deprived the plaintiff of access to the educational opportunities or benefits. Davis , 526 U.S. at 650, 119 S.Ct. 1661. A defendant acts with deliberate indifference for Title IX purposes "when the defendant's response to known discrimination is clearly unreasonable in light of the known circumstances." Gant ex rel. Gant v. Wallingford Bd. of Educ. , 195 F.3d 134, 141 (2d Cir. 1999) (quotations and citation omitted) (emphasis added). Stated differently, to comply with Title IX, a university must respond to known student harassment in a manner that is not clearly unreasonable.
Both the "clearly unreasonable" and "actual knowledge" prongs have real meaning. "Clearly unreasonable" is not a mere reasonableness standard. Davis , 526 U.S. at 649, 119 S.Ct. 1661. Rather, it is a high standard that seeks to eliminate any risk that an educational institution "would be liable in damages not for its own official decision but instead for [another individual's] independent actions." Id. at 643, 119 S.Ct. 1661. Likewise, a university cannot be held liable pursuant to Title IX without actual knowledge or notice of the harassment. Zeno v. Pine Plains Cent. Sch. Dist. , 702 F.3d 655, 666 (2d Cir. 2012). Constructive knowledge (i.e. , allegations that the school should have known of the harassment) is not enough. ( Id. ) On a motion to dismiss, courts may determine, as a matter of law, whether the response alleged was not clearly unreasonable and whether the university is alleged to have had actual knowledge of the alleged harassment. See Davis , 526 U.S. at 649, 119 S.Ct. 1661.
A. Plaintiff's First Cause Of Action: Deliberate Indifference Prior To The Assault.
Plaintiff's First Cause of Action asserts Title IX liability against Defendant on the basis that it created a sexually hostile culture through its general policy of indifference to sexual misconduct on campus. (FAC ¶ 85–89.) This Court dismissed this claim as stated in the original complaint "because Plaintiff fails to sufficiently allege that Defendant possessed actual knowledge of a heightened risk of sexual assault in a specific context. " (Nov. 2018 Decision at 9 (citing Tubbs v. Stony Brook Univ. , 15 Civ. 0517 (NSR), 2016 WL 8650463, at *8 (S.D.N.Y. Mar. 4, 2016) (emphasis added)).)
Plaintiff adds to her amended complaint an allegation that, in September 2015, a university administrator tweeted an article about sexual assault statistics purportedly indicating that complainants who failed to report rape to the police are likely lying, and that campus sexual assault is rare. (FAC ¶ 17.) This new allegation does not resuscitate Plaintiff's pre-assault claim because it is simply another conclusory "general allegation" that does not "indicate that Defendant had specific knowledge of a heightened risk of sexual assault either by her assailant or in the particular contexts in which her assaults occurred, such as an official university policy or program." (Nov. 2018 Decision at 11.)
Accordingly, because Plaintiff's new allegation fails to sufficiently allege that Defendant had specific knowledge of a heightened risk of sexual assault within a particular context, Plaintiff's First Cause of Action is dismissed.
B. Plaintiff's Second Cause of Action: Deliberate Indifference Following Her Assault.
Plaintiff's Second Cause of Action for Title IX liability is based on Defendant's alleged deliberate indifference in responding to Plaintiff's report of sexual assaults and request for certain accommodations as a result of the assaults. Plaintiff alleges that despite receiving notice of Plaintiff's initial rape "as early as October 14, 2015 but no later than December 3, 2015," Defendant failed to timely and adequately investigate her claims and provide reasonable accommodations, which contributed to the occurrence of Plaintiff's second rape. (FAC ¶¶ 91–97; Opp'n at 5.) Plaintiff asserts that, in doing so, Defendant violated its own Sexual Misconduct Policy and the guidelines issued by the Department of Education ("DOE Guidelines") regarding the implementation, interpretation, and enforcement of Title IX. (FAC ¶¶ 91–97; Opp'n at 5.)
This Court dismissed this claim as stated in the original complaint "because Plaintiff fails to sufficiently allege that Defendant responded to Plaintiff's sexual assaults and request for accommodations in a clearly unreasonable manner, once it had actual knowledge of the assaults. " (Nov. 2018 Decision at 12 (citing Davis , 526 U.S. at 650, 119 S.Ct. 1661 ) (emphasis added).) This Court also found that Defendant acquired actual knowledge of the Oct. 2015 Assault during the December 3, 2015 meeting with Columbia's executive vice president for university life. (Id. at 13.) Importantly, Plaintiff does not add new factual allegations to her amended complaint that Defendant behaved unreasonably after that meeting. (Opp'n at 2–3). She only adds allegations in support of her contention that Defendant "received actual knowledge of Plaintiff's rape as early as October 14, 2015 ..." (FAC ¶ 91.) Therefore, Plaintiff admits that the "new allegations contained in her [amended complaint] are only relevant to her theory that Defendant acted with deliberate indifference by engaging in an unreasonable delay in responding to her report of sexual misconduct." (Opp'n at 8, n.2.) Accordingly, this Court will only further evaluate Plaintiff's new allegations to determine if Defendant was put on actual knowledge of Plaintiff's Oct. 2015 Assault prior to December 3, 2015, and if so, whether the additional delay was unreasonable for purposes of Title IX.
Plaintiff first adds an allegation in her amended complaint that she explicitly told the SVR staff advocate during the October 13, 2015 call that she had been raped in Hartley Hall, her campus dormitory. (FAC ¶ 36.) She also alleges that on October 14, 2015 she asked the staff advocate if Defendant would waive the $500 fee and the requirement to notify her parents if she changed dormitories, but the staff attorney "informed Plaintiff the fee and notification could not be waived for Plaintiff's situation and provided Plaintiff with no alternative offices to speak about housing accommodations." (Id. ¶ 37.) But this Court already determined that Plaintiff's report to SVR "is insufficient for purposes of conferring actual knowledge on Defendant because Plaintiff merely reported the rape to an SVR representative, who Plaintiff does not allege had any authority to take corrective action to remedy her assault." (Nov. 2018 Decision at 13, n.4 (citing Gebser v. Lago Vista Indep. Sch. Dist. , 524 U.S. 274, 290, 118 S.Ct. 1989, 141 L.Ed.2d 277 (1998) ).) Plaintiff does not add any allegations to her amended complaint suggesting that the SVR staff advocate had the authority to take corrective action to end the discrimination. Therefore, the new details of her conversations with the SVR staff advocate do not establish that Defendant had actual knowledge of the Oct. 2015 Assault on October 13 or 14, 2015. See Gebser , 524 U.S. at 290, 118 S.Ct. 1989 (holding that a report of assault must be made to an "official ... with authority to take corrective action to end discrimination" for defendant to be put on actual notice of the assault).
According to Plaintiff, SVR "had been advertised to students during orientation as the office to contact for assault-related housing and other accommodations." (FAC ¶ 34.)
Plaintiff also adds allegations in her amended complaint that, during an October 14, 2015 meeting, her academic advisor "understood" that Plaintiff had been sexually assaulted, but failed to report it. (FAC ¶¶ 41–44.) However, Plaintiff never expressly told her academic advisor that she had been sexually assaulted. Plaintiff also undermines her allegation by admitting that "[the academic advisor] reported Plaintiff's rape in the form of a vague Wellness Report ..." (Id. ¶ 45.) As Defendant points out, "[t]his makes complete sense—Plaintiff's advisor could not be expected to report something she was never told ..." (Mem. of Law in Supp. of Def.’s Mot. to Dismiss the Am. Compl. ("Mem."), ECF No. 64, at 6.) Indeed, Plaintiff only insinuated to the fact that she was sexually assaulted. She did not provide her academic advisor with any details about the circumstances, including the time and location, of the Oct. 2015 Assault. In fact, during the meeting Plaintiff indicated that "she was scared to go into too much detail ... because she knew that [the academic advisor] was a mandated reporter." (FAC ¶ 42.) Plaintiff's response clearly indicates that she did not want her academic advisor to report the assault. If anything, the academic advisor reported the incident despite Plaintiff's desire that it not be reported and her lack of cooperation. Accordingly, Plaintiff cannot argue now, in good faith, that her academic advisor was put on actual notice of the Oct. 2015 Assault at the October 14, 2015 meeting, during which Plaintiff purposefully refused to cooperate and share any details of the assault, specifically out of fear that the advisor would report it. (Nov. 2018 Decision at 13 ("While an insinuation of assault may constitute constructive knowledge, it plainly does not rise to the level of actual knowledge and is therefore insufficient for purposes of Title IX liability.") (citing Zeno v. Pine Plains Cent. Sch. Dist. , 702 F.3d 655, 666 (2d Cir. 2012) ).) In any event, the advisor reported the incident to the extent that it was revealed by Plaintiff. Plaintiff must do more than hint that a sexual assault may have occurred.
Plaintiff then adds completely new allegations in her amended complaint that she reported the Oct. 2015 Sexual Assault to her creative writing professor. (FAC ¶¶ 46–49.) First, she alleges that, on October 13, 2015, she submitted a non-fiction writing assignment in which she described "all the feelings" she felt while being assaulted without explicitly stating it. (Id. ¶ 46.) Her professor's comments on the assignment included the question: "I take it you were assaulted?" (Id. ) On October 20 or 27, 2017, when Plaintiff met with her professor to go over the assignment, she confirmed that she had been "recently sexually assaulted." (Id. ¶ 47.) Defendant correctly argues that this vague reference to a "recent" sexual assault, much like Plaintiff's insinuation to her academic advisor, is insufficient to establish that her professor had actual knowledge of a recent rape on campus. (Mem. at 8; Nov. 2018 Decision at 13 (citing Zeno , 702 F.3d at 666 (2d Cir. 2012) ).)
Plaintiff also alleges that, on November 3, 2015, she submitted a second writing assignment to the same creative writing professor "in which she explicitly wrote that she was raped and it occurred at Columbia in her dorm." (FAC ¶ 48.) Plaintiff also now alleges that her professor was a mandatory reporter of sexual assault, and that "she is informed, believes, and on that basis alleges, that [he] did not report [the Oct. 2015 Assault]" despite having actual knowledge. (Id. ¶ 49.) Plaintiff's conclusory allegations that "she was informed, believes, and on that basis alleges" are insufficient because she does not explain what facts support her belief that her professor never reported the assault. See Twombly , 550 U.S. at 551-53, 127 S.Ct. 1955 (allegations "upon information and belief" are insufficient to overcome a motion to dismiss where plaintiff does not support them with a statement of facts that creates a plausible inference of their truth); Ndremizara v. Swiss Re Am. Holding Corp. , 93 F. Supp. 3d 301, 318 (S.D.N.Y. 2015) (same). Even assuming that these allegations are true, "it would only mean that Columbia had actual knowledge a month earlier, on November 3, 2015, as opposed to on December 5, 2015." (Mem. at 9.) This Court has already held that "a delay in remedial action may constitute deliberate indifference only when such delay is lengthy and unjustified , which Plaintiff does not allege." (Nov. 2018 Decision at 18 (quoting Hayut v. State Univ. of N.Y. , 352 F.3d 733, 751 (2d. Cir. 2003) ).)
Defendant argues that this Court should dismiss this allegation because "Plaintiff does not allege that the Creative Writing Professor actually read or reviewed the content of Plaintiff's second postcard ..." (Mem. at 8. (emphasis added).) However, for purposes of Defendant's motion to dismiss, this Court draws the reasonable inference in Plaintiff's favor that her professor read and reviewed the second writing assignment. See N.J. Carpenters Health Fund , 709 F.3d at 119-20 (holding that courts must draw all reasonable inferences in the non-moving party's favor when deciding a 12(b)(6) motion to dismiss).
None of Plaintiff's additional allegations in her amended complaint change this Court's prior finding that, given Plaintiff's reluctance to report her sexual assault, at all times "Defendant acted in a manner that merely respected Plaintiff's wishes." (Id. at 15.) Plaintiff made it abundantly clear in every interaction with Defendant's employees—including the SVR staff advocate, her academic advisor, and her creative writing professor—that she did not want to report the Oct. 2015 Assault. Despite Plaintiff's reluctance, Defendant reached out to Plaintiff, at most, two months after it had actual notice that Plaintiff had been raped. (FAC ¶ 59.) Yet, despite being afforded an opportunity to pursue her claims, it was Plaintiff, not Defendant, who decided not to proceed with a police or university investigation. (Id. ¶ 60.) Plaintiff withheld the facts of any specific sexual assault, and thereafter indicated that she did not wish to have it reported. Defendant honored her request for privacy and took no further action until after August 5, 2016, when Plaintiff decided that she wanted to report two rapes and initiate an investigation. (Id. ¶ 63.) She cannot then sue the institution for an unreasonable response after it promptly investigated when she decided to formally report the sexual assaults.
The fact that Plaintiff refused to pursue an investigation due to her lack of trust that Defendant would take the proper remedial action is irrelevant. (FAC ¶ 60.) Plaintiff's motivation for refusing the investigation does not alter the fact that Defendant reached out to Plaintiff to investigate her claims.
Accordingly, Defendant did not act with deliberate indifference in responding to Plaintiff's report of a campus rape.
IV. PLAINTIFF'S STATE LAW CLAIMS ARE DISMISSED
Having dismissed the only claims over which it has original jurisdiction, this Court declines to exercise supplemental jurisdiction over the remaining state law and common law claims at this early stage in the litigation. See 28 U.S.C. § 1367(c)(3) ("The district courts may decline to exercise supplemental jurisdiction over a claim ... [if] the district court has dismissed all claims over which it has original jurisdiction."); Purgess v. Sharrock, 33 F.3d 134, 138 (2d Cir. 1994) ("[T]he exercise of supplemental jurisdiction is left to the discretion of the district court.").
V. CONCLUSION
Defendants’ motion to dismiss Plaintiff's amended complaint, ECF No. 63, is GRANTED. The Clerk of Court is directed to close the motion.
SO ORDERED.