Wednesday, July 10, 2019
Dissenting, Judge Owens Says Triable Issues of Fact Exist
By a MetNews Staff Writer
The University of San Diego did not respond with “deliberate indifference” to a student’s claim that she was raped in her dormitory, the Ninth U.S. Circuit Court of Appeals declared yesterday, over a dissent which accused school officials of permitting the destruction of evidence,
The majority of a three-judge panel, in a memorandum opinion, affirmed a summary judgment granted to USD by District Court Justice Cathy Ann Bencivengo of the Southern District of California. The plaintiff, Nicole Ramser, sought damages under Title IX of the Education Amendments Act of 1972, which provides:
“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.”
The majority—comprised of Circuit Judge Jacqueline H. Nguyen and District Court Judge John Antoon II of the Middle District of Florida, sitting by designation—declared:
“Here, construing the record as a whole in the light most favorable to Ramser, we conclude that USD’s response was not deliberately indifferent for purposes of Title IX liability.”
Ramser claimed that in the early morning hours of Feb. 9, 2014, she drank a mimosa prepared by graduate student Ricky Laielli; that she felt dizzy, alleging she had been drugged; and that while they were alone in the dorm living room, he raped her. She fled the room; contacted USD’s campus police; was taken to a hospital by ambulance and, after about three hours police were contacted.
While Ramser was at the hospital, campus police found Laielli asleep in Ramser’s room. He said he and Ramser, along with others, drank alcohol that night; he acknowledged that he and she engaged in sexual intercourse but denied that it was nonconsensual.
Cups Not Preserved
During the interview conducted by campus police officer Jason Baker and others, one of Ramser’s roommates cleaned the living room. The cups containing remnants of the drinks were not preserved for testing to ascertain if any contained a drug.
The majority said in yesterday’s opinion:
“Ramser cites no authority showing that USD had the duty, despite police involvement, to investigate that night. And while Baker’s failure to preserve the drinks may have been negligent, that failure did not appear to impair the police’s ability to gather evidence.”
The opinion also says:
“Ramser contends that USD’s response was deliberately indifferent in several respects, including delaying calling the police that night and attempting to dissuade her from involving the police, failing to give her parking closer to her night classes, and failing to give her academic accommodations. These facts, even if true, are not sufficient to create a triable issue of material fact on the question of deliberate indifference.”
Circuit Judge John B. Owens said in a dissent:
“In my view, construing the facts in the light most favorable to Ramser, a jury could find that USD acted with deliberate indifference.
“The actions of the USD officials who visited Ramser’s dorm room are especially troubling. After Ramser alerted USD authorities that she was allegedly drugged and raped, public safety officer Baker found the alleged perpetrator, Laielli, naked in her bed. Community Director Lee and public safety officers Skillings and Salton arrived soon after, and no one secured the scene, took statements from Laielli or Ramser’s roommates, took the cups or drinks to be tested for drugs, or otherwise attempted to preserve evidence. Instead, they allowed a roommate to clean the dorm room, and drove Laielli home. This conduct made it almost impossible to properly investigate Ramser’s complaint of sexual assault.”
Owens said that whether USD’s “response was ‘clearly unreasonable in light of the known circumstances’ ” and whether Ramser was prejudiced were triable issues of fact.
The majority responded in a footnote:
“Contrary to the dissent’s contention, USD public safety officers did in fact question Laielli and Ramser’s roommates that night. As for the failure to prevent Ramser’s roommate from cleaning up, no evidence supports the dissent’s contention that such conduct was more than negligence or that it impacted the police’s ability to investigate. Again, nothing prevented the San Diego Police Department from interviewing witnesses that night or responding to the scene to gather the cups or drinks that could have still been on the scene. The police did not do so.”
USD did not find a basis for disciplining Laielli.
The case is Ramser v. University of San Diego, No. 17-56342.
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