BECKLEY – Three of the defendants named in a lawsuit against West Virginia School of Osteopathic Medicine have filed a motion to dismiss themselves from the lawsuit.
Michael Adelman, Leslie Bicksler and Elaine Soper's motion to dismiss states that the plaintiff, Nicole Rex, may not maintain claims against them in their official capacities, citing that a state official, in his/her official capacity, is not a "person."
"Plaintiff has asserted that these defendants, in their official and individual capacities, violated plaintiff's Fourteenth Amendment right to Equal Protection under the law and seeks, pursuant to 42 U.S.C. § 1983, remuneration for said violation of this constitutional right," the March 27 memorandum states.
The memorandum also states that the defendants' employer is an arm of the state and that Rex's claims against the defendants in their individual capacities fail as a matter of law because they did not violated her right to "personal security and bodily integrity."
The defendants also argue that they are entitled to a complete dismissal on the basis of qualified immunity.
On Aug. 31, Nicole Rex attended a party at off-campus apartments near WVSOM and, starting at approximately 9 p.m., a another student, Daniel J. McGuinness offered her several shots of Jagermeister from a bottle he had brought to the party, according to a complaint filed Jan. 23 in the U.S. District Court for the Southern District of West Virginia.
Rex claims he later offered her the bottle to hold, which she accepted, believing that it would be safer to share a bottled drink than to drink from the party punch bowls.
After approximately midnight, Rex does not remember what happened and blacked out for approximately 4.5 hours, according to the suit. When she woke up, McGuinness was lying on top of her and was raping her.
Rex claims she did not know where she was, who McGuinness was, and she felt different than she had ever felt. She was disoriented, groggy and unable to recall the earlier events of the night, as if she had been drugged.
Tests subsequently confirmed that Rex had been under the influence of the “date rape drug,” according to the suit.
Rex claims she did not known how to handle that she had been drugged and raped.
On Sept. 5, 2012, one of Rex’s friends, e-mailed the associate dean for pre-clinical education, John A. Schriefer, and requested a meeting for Rex the following day.
On Sept. 6, 2012, Rex, accompanied by two friends, reported the assault to Schriefer, who told her to file a formal complaint with the school and report the matter to the police.
Schriefer assured Rex that she would be protected and that retaliation would not result from her pursuing a sexual assault complaint against McGuinness, according to the suit.
Rex claims WVSOM’s handling of the meeting and its subsequent processes were woefully inadequate and Schriefer, nor his secretary, Deborah Harvey, advised Rex to undergo a drug test or made any efforts to help her obtain one, even though WVSOM readily drug tested all first- and second-year students.
The failure to test Rex impaired her ability to isolate any drugs McGuinness may have slipped into the drinks he plied her wish, according to the suit. This failure was unacceptable and particularly damaging.
Rex claims she reported the assault to the police and was advised to go to the hospital and the obtain an order of protection against McGuineess from the courts, both of which she did.
The court issued a temporary personal safety order against McGuinness, banning him from communicating with Rex, and a personal safety hearing was scheduled for Sept. 19, 2012.
Shortly before the personal safety hearing, one of the students Rex had asked to attend the hearing told her that McGuinness had contacted the student and asked them to testify that McGuinness had not put anything in her drink at the party to drug her, according to the suit.
Rex claims she was shocked and concerned that McGuinness was apparently accumulating evidence, and disturbed that he was specifically trying to concoct proof that he had not drugged her. She claims she discussed the matter with Schriefer, who offered to go to the hearing with her.
Rex also spoke with Adelman, who told her that Schriefer had been assigned to support her during the investigation, and that she would not need her own attorney.
WVSOM then prohibited Rex from not communicating with McGuinness, or from communicating with any student, faculty member or administrator about her case, according to the suit.
Rex claims the effect of these restrictions were devastating to her, as she had difficulty attending class, since WVSOM had only two classrooms across the hall from each other and in order for her to attend her classes it was virtually impossible for her to avoid seeing McGuinness and there was no way to ensure that she would have no contact with him.
WVSOM violated Title IX by not only failing to minimize the burden on Rex, but by making it worse and allowing McGuinness to roam the campus unrestricted.
Rex claims she was punished for filing the sexual assault complaint and was unable to maintain or build a support system or speak with anyone about the rape, its aftermath or her concerns or feelings about it.
Because of WVSOM’s conduct, Rex was forced to withdraw from the school and transfer to another medical school, where she had to repeat her entire first year.
Rex is seeking compensatory and punitive damages and for injunctive relief requiring WVSOM to change its drug policy and provide advanced drug testing for victims of sexual violence. She is being represented by James R. Marsh and Jennifer Freeman of Marsh Law Firm.
The defendants are represented by David E. Schumacher and Michael W. Taylor of Bailey & Wyant PLLC.
The case is assigned to District Judge Irene C. Berger.
U.S. District Court for the Southern District of West Virginia case number: 5:15-cv-01017