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S.U. v. Stockton University

United States District Court, D. New Jersey, Camden Vicinage

July 29, 2019

S.U., Plaintiff,

          FUGGI LAW FIRM, P.C. By: Robert R. Fuggi, Esq. Jonathan M. Penney, Esq.; Peter S. Pascarella, Esq. Counsel for Plaintiff S.U.

          OFFICE OF THE ATTORNEY GENERAL OF NEW JERSEY By: Michael R. Sarno, Deputy Attorney General R.J. Hughes Justice Complex Counsel for Defendants Stockton University and Stockton University Emergency Medical Services

          GREENBAUM, ROWE, SMITH & DAVIS, LLP By: John D. North, Esq.; Jemi Goulian Lucy, Esq.; Irene Hsieh, Esq. Counsel for Defendants Stockton University and Stockton University Emergency Medical Services

          ZARWIN BAUM DEVITO KAPLAN SCHAER TODDY, P.C. By: Timothy P. Mullin, Esq. Counsel for Defendant Pi Kappa Phi Fraternity, Inc.

          OPINION [DKT. NOS. 26, 27]


         Plaintiff S.U. (“Plaintiff”) brings this action against Defendants Stockton University (“Stockton”), Stockton University Emergency Medical Services (“Stockton EMS”), William Murphy “Murphy”), and Pi Kappa Phi Fraternity, Inc. (“PKP”) (collectively, “Defendants”), in relation to a series of alleged sexual assaults during Plaintiff's time as a student at Stockton. Specifically, Plaintiff alleges that she was sexually assaulted three times in September 2017: once by a “red headed male” at the local PKP fraternity house and twice by Defendant William Murphy in his Stockton campus housing.[1]

         Plaintiff's Complaint (the “Complaint”)[Dkt. No. 1] asserts causes of action under Title IX of the Education Amendments Act of 1972, 20 U.S.C. § 1681, et seq. (Counts 1-2), Section 1983 of the Civil Rights Act, 42 U.S.C. § 1983 (Counts 3-4), the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act (“Clery Act”), 20 U.S.C. § 1092 (Count 5), [2]personal injury tort claims (Counts 6-13), as well as various derivative claims (Counts 14-24).

         This matter now comes before the Court upon Motions to Dismiss, filed by Stockton, Stockton EMS, and PKP (collectively, the “Moving Defendants”)[See Dkt. Nos. 26, 27].[3] Although the Court accepts all of Plaintiff's disturbing allegations as true for purposes of these motions, the Court is constrained by legal precedent mandating dismissal. For the reasons set forth herein, the Moving Defendants' Motions to Dismiss will be GRANTED, and Plaintiff's claims against the Moving Defendants will be DISMISSED WITHOUT PREJUDICE. The Court, however, will allow Plaintiff thirty (30) days to file an amended complaint, addressing the deficiencies discussed in this Opinion.


         In her Complaint, Plaintiff describes the grave details of the alleged sexual assaults. As averred, Plaintiff was a freshman at Stockton University in the fall of 2017, studying to become a trauma nurse. See Compl. at ¶ 4. On the night of September 7, 2017, Plaintiff alleges that she, along with some friends, attended a party at the PKP off-campus fraternity house. Id. at ¶ 13. After drinking two cans of beer, provided by PKP members, Plaintiff states that she suddenly “began to feel dizzy and was incapacitated and thereafter passed out.” Id. at ¶ 18. Plaintiff describes “going in and out of consciousness” and “waking up in one of the bedrooms in the Pi Kappa Phi fraternity house with an unknown red headed male on top of her having sex with her.” Id. at ¶¶ 19-20. Due to her incapacitated condition, Plaintiff “was unable to identify or know her assailant, or able to give consent.” Id.

         Plaintiff does not recall how she got out of the bedroom, but her next memory was sitting on the curb outside the PKP house, “crying because her vagina was in pain, which lead [sic] her to believe that she had been sexually assaulted [] when she was unconscious.” Id. at ¶¶ 21-22. Plaintiff states that she finally regained her faculties when she was back at the Stockton University dorms, without any memory of how she got back to campus. Plaintiff recalls that “her left wrist and her vagina [were] still in a great deal of pain.” See Compl. at ¶ 24. Upon returning to her dorm room, Plaintiff's roommates allegedly told her “that she could not sleep in their dorm room because she was still incapacitated, emotional, and very upset.” Id. at ¶ 25.

         After being turned away by her roommates, Plaintiff “sought comfort and help from Defendant William Murphy, who was a friend and a member of the Stockton University E.M.S.” See Compl. at 26. Murphy was a junior at Stockton and served as a Sergeant for the Stockton EMS, which Plaintiff was in the process of applying for a position as an EMT. Id. at ¶¶ 27-28. “Plaintiff asked Murphy if she could stay at his university housing for the night for safety and medical reasons.” Id. at ¶ 29. Murphy picked up Plaintiff and drove her to his on-campus dorm. Id. at ¶ 30.

         While at Murphy's dorm room, Plaintiff told Murphy “what had happened at the Pi Kappa Phi house that evening, explaining that she had consumed only two beers before falling unconscious and finding herself in a bedroom with a red headed male from Pi Kappa Phi that she didn't know on top of her.” See Compl. at ¶ 31. Plaintiff told Murphy that “her vagina was very sore, and that she feared someone had sex with her while she was incapacitated.” Id. In response, Murphy allegedly took out a bottle of Captain Morgan rum, poured shots, and encouraged Plaintiff, who was still drunk, to “calm down by having a few shots.” Id. at ¶ 32.

         Plaintiff states that the next thing she remembers was standing naked in Murphy's dormitory shower, with Murphy “standing in the shower naked next to her touching her sexually.” See Compl. at ¶ 34. Plaintiff explains that while she was still incapacitated, Murphy “sexually assaulted and raped S.U. just hours after she had been assaulted and raped at the Pi Kappa Phi fraternity house and was trying to recover.” Id. at ¶ 35. The next morning, “Plaintiff woke up naked, with her vagina sore and in pain, in Defendant Murphy's bed, next to the Defendant who was naked as well.” When questioned about what had happened the previous night, Murphy told the Plaintiff that she was “really drunk.” Plaintiff states that she was “startled and upset” and hurried out of Murphy's campus apartment and headed to class.

         After returning from her classes, Plaintiff “reported to her R.A. Diane Santos the sexual assault/rape that occurred at the Pi Kappa Phi fraternity house the night before.” See Compl. at ¶ 39. In turn, Santos relayed Plaintiff's report to the Stockton's Office of Residential Life. Id. at ¶ 40. A woman from Residential Life “spoke to S.U. and inquired if she wished to file a police report with the Stockton Police, ” but Plaintiff “chose not to file criminal charges.” Id. at ¶¶ 40-41. Although Plaintiff reported the alleged sexual assault by the unknown perpetrator at PKP, she did not report the alleged sexual assault by Murphy because “[a]t that moment in time, she was unaware, if Defendant Murphy had attempted to have sex with her while she was in an incapacitated state at his dorm.” Id. at ¶ 39. Plaintiff states that Stockton performed no further investigation into the reported sexual assault. Id. at 42.

         The Residential Life officer asked Plaintiff if she wished to be brought to the hospital, to which Plaintiff answered affirmatively. See Compl. at ¶ 41. That evening, Plaintiff's friend transported her to Shore Medical Center in Somers Point, where a rape kit was completed. Id. at ¶¶ 43, 46. The rape kit showed “swelling, redness, and semen in [Plaintiff's] vagina, ” and Plaintiff was administered “emergent medications” to prevent pregnancy. Id. at ¶¶ 46-47.

         While at the hospital, Plaintiff texted Murphy to notify him “that she was at the hospital because she had been raped.” See Compl. at ¶ 44. According to Plaintiff, “Murphy became concerned that S.U. was reporting him for the rape.” Id. at ¶ 45. The next day, Saturday, September 9, 2017, Murphy asked Plaintiff to come over to his apartment to discuss the events from the night of September 8, 2017. Id. at ¶ 48. Although Plaintiff states that she was anxious about meeting with Murphy again, she “wanted to find out what had occurred the night before.” Id. at ¶ 49. Murphy picked Plaintiff up and drove her to his dorm, where he “attempted to dispel her worries and fears of having been sexually assaulted.” Id. Plaintiff alleges that Murphy “once again provided Captain Morgan Rum to the Plaintiff which led to ...

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