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Ninth Circuit:
Claims Filed Five Years After Expulsion Are Time-Barred
Panel Says Neither Equitable Tolling Due to Mandamus Proceedings Nor Imprisonment Saves Action Against USC
By Kimber Cooley, Staff Writer
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BRYCE DIXON former Trojan |
The Ninth U.S. Circuit Court of Appeals has affirmed an order granting summary judgment in favor of the University of Southern California in a 2020 suit by a former student over his 2015 expulsion for alleged sexual misconduct, an action that was set aside in 2019 following a Title IX investigation.
A panel, in a memorandum opinion, on Thursday held that neither equitable nor statutory tolling saved his time-barred claims, affirming an order by Senior District Court Judge Virginia A. Phillips of the Central District of California. The appeal by Bryce Dixon was heard before Ninth Circuit Judges Jacqueline H. Nguyen and Kenneth K. Lee, joined by Sixth Circuit Court of Appeals Judge Danny J. Boggs, sitting by designation.
In 2014, Dixon was a promising freshman tight end at USC, attending on full scholarship. In October of 2014, a senior athletic trainer identified as Jane Roe accused him of sexual assault and reported the alleged misconduct to the university.
USC conducted a Title IX investigation and concluded that Dixon had violated USC’s Student Code by engaging in unwanted sexual conduct with Roe. Kegan Allee-Moawad of USC’s Office for Equity, Equal Opportunity, and Title IX conducted interviews and on March 2, 2015, made the recommendation to expel Dixon which was carried out 10 days later.
Dixon filed a mandamus petition Los Angeles Superior Court challenging the action. He ultimately prevailed, having his expulsion set aside in October 2019.
In April of 2016, while his mandamus petition was still pending, Dixon was imprisoned in state prison following a no-contest plea to one count of carjacking and two counts of second degree robbery.
Civil Action
On June 29, 2021, approximately two years after the conclusion of his mandamus proceedings, Dixon filed suit against USC, alleging claims arising out of the Title IX proceeding which he claimed was tainted by anti-male bias and that he was deprived of a fair hearing. He set forth two claims under Title IX—erroneous outcome and selective enforcement—as well as alleging violation of the Unruh Civil Rights Act, breach of contract, promissory estoppel, negligence, and intentional infliction of emotional distress.
Phillips held that all of Dixon’s claims were time-barred by the applicable statutes of limitations, specifically finding that Dixon’s breach of contract claim was subject to a four-year statute of limitations, and each of Dixon’s other claims were subject to a two-year statute. Phillips found that all claims arose from the May 2015 expulsion.
The judge concluded:
“Therefore, the longest statutory period applicable to Dixon’s claims expired in May 2019. Dixon filed this action on June 29, 2021 – at least two years after the statute of limitations expired on his breach of contract claim.” Dixon appealed, and argued that his claims were not time-barred owing to an interplay between the law governing statute of limitations and California’s doctrine of judicial exhaustion.
Judicial Exhaustion
The panel found that while Dixon was required to succeed in overturning the “quasi-judicial” determination in his Title IX proceeding before he could pursue damages against USC, that fact did not automatically toll his claim.
It noted that “the California Supreme Court has stated that a claim’s limitations period can run concurrently with the mandamus proceedings.” The jurists explained:
“Because Dixon does not otherwise dispute the district court’s determination that he ‘was fully aware of [his] injury’ when USC expelled him in May 2015, we affirm the district court’s determination that Dixon’s claims accrued at that time.”
Dixon pointed to the California Supreme Court’s 2008 opinion in McDonald v. Antelope Valley Community College District holding that a plaintiff’s use of internal grievance procedure with a community college did not preclude a finding of equitable tolling of the claims.
The judges distinguished that case from the present matter because there, the court “examined automatic equitable tolling for claims requiring administrative exhaustion,” which is a separate doctrine from judicial exhaustion.
They acknowledged that, at times, the fact that judicial exhaustion does not automatically toll the statute of limitations can cause practical difficulties for plaintiffs, but found that those difficulties do not change the law.
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—AP Bryce Dixon is seen in a 2014 photo as a USC tight end catching a touchdown pass during the Trojans’ 52-13 win over Fresno State. |
The panel explained:
“A plaintiff who has not litigated his mandamus petition to completion but approaches the end of his limitations period has two choices: He can either (1) wait until the completion of his mandamus proceedings to file suit and risk running afoul of the statutes of limitations on his damages claims (like Dixon); or (2) file suit before his mandamus petition is resolved and risk his premature damages case being stayed or dismissed for failure to judicially exhaust.”
However, they continued:
“California courts have acknowledged this dilemma but have concluded that discretionary—not automatic—equitable tolling may be the appropriate solution.”
Statutory Tolling
The court similarly rejected the argument that his claims were tolled by California Code of Civil Procedure §351.2, which provides:
“If a person entitled to bring an action…is, at the time the cause of action accrued, imprisoned on a criminal charge, or in execution under the sentence of a criminal court for a term less than for life, the time of that disability is not a part of the time limited for the commencement of the action, not to exceed two years.”
Pointing out that the plain text of the code would apply only to actions that “accrued” during Dixon’s incarceration, the judges wrote:
“Because Dixon’s claims accrued in May 2015—before his April 2016 incarceration—§ 352.1 does not toll his claims.”
Equitable Tolling
In finding that Phillips did not err in denying Dixon’s request for discretionary equitable tolling, the panel noted that the filing of one action may equitably toll another action if the following three conditions are met: timely notice, lack of prejudice, and good faith and reasonable conduct by the plaintiff in filing the later claims.
The panel agreed with Phillips’ determination that Dixon’s request failed due to a failure of the third condition.
The judges wrote:
“When analyzing a plaintiff’s reasonable conduct, his timeliness in filing his second action is an important consideration….Dixon’s mandamus proceedings concluded in October 2019, but he did not file his damages action until June 2021. Even if we accept Dixon’s argument that it was reasonable to wait until the conclusion of his mandamus proceedings before filing this damages action, a 20-month delay is too long to be deemed reasonable.”
The case is Dixon v. University of Southern California, 23-55079.
Dixon is now a defensive tackle for the Liberty Flames at Liberty University in Lynchburg, Virginia, where he is a junior.
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