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Johnson v. W. State Colorado University

United States District Court, D. Colorado

October 24, 2014

WESTERN STATE COLORADO UNIVERSITY, BRAD BACA, individually and in his official capacity as President of Western State Colorado University, GARY PIERSON, individually and in his official capacity as Vice President Student Affairs & Dean of Students, and SARA PHILLIPS, individually and in her official capacity as Title IX Coordinator, CHRIS LUEKENGA, individually and in his official capacity as Associate Vice President for Student Affairs, and SUSAN COYKENDALL, individually and in her capacity as an employee of Western State, Defendants

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[Copyrighted Material Omitted]

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For Keifer Johnson, Plaintiff: Gregory Robert Stross, Gregory R. Stross Attorney At Law, Denver, CO.

For Western State Colorado University, Brad Baca, in his official capacity as president of Western State Colorado University, Brad(I) Baca, individually, Gary Pierson, in his official capacity as Vice Prresident Student Affairs & Dean of Students, Gary(I) Pierson, individually, Sara Phillips, in her official capacity as Title IX Coordinator, Sara (I) Phillips, individually, Chris Luekenga, in his official capacity as Associate Vice President for Student Affairs, Chris(I) Luekenga, individually, Defendants: Kimberly Cecilia Jones Spiering, LEAD ATTORNEY, Amy Christine Colony, Jonathan Patrick Fero, Michelle M. Merz-Hutchinson, Colorado Attorney General's Office, Ralph L. Carr Colorado Judicial Center, Denver, CO.

For Susan Coykendall, in her official capacity as an employee of Western State, Susan(I) Coykendall, individually, Defendants: Mark Scott Ratner, Thomas John Lyons, Hall & Evans, LLC-Denver, Denver, CO.

For AG, OG, Interested Parties: Sarah Anne Croog, Garlin Driscoll, LLC, Louisville, CO.

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William J. Martínez, United States District Judge.

Plaintiff Keifer Johnson (" Plaintiff" ) brings this action against Western State University and some of its employees (" Defendants" ) under 42 U.S.C. § 1983 and Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681 et seq. (" Title IX" ), arising out of disciplinary action taken against him for a sexual relationship he engaged in with another student. (ECF No. 1.) After significant litigation early in this case, the operative pleading is Plaintiff's Third Amended Complaint (" TAC" ). (ECF No. 138.) Before the Court are Defendants' Motions to Dismiss (" Motions" ). (ECF No. 150 & 163.) For the reasons set forth below, the Motions are granted in part and denied in part.


The Motions are brought pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).

Rule 12(b)(1) empowers a court to dismiss a complaint for " lack of jurisdiction over the subject matter." Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiff's case. Rather, it calls for a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994) (recognizing federal courts are courts of limited jurisdiction and may only exercise jurisdiction when specifically authorized to do so). The burden of establishing subject matter jurisdiction is on the party asserting jurisdiction. Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974). A court lacking jurisdiction " must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking." See id.

A Rule 12(b)(1) motion to dismiss " must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction." Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971). W hen considering a Rule 12(b)(1) motion, however, the court may

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consider matters outside the pleadings without transforming the motion into one for summary judgment. Holt v. United States, 46 F.3d 1000, 1003 (10th Cir. 1995). W here a party challenges the facts upon which subject matter jurisdiction depends, a district court may not presume the truthfulness of the complaint's " factual allegations . . . [and] has wide discretion to allow affidavits, other documents, and [may even hold] a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1)." Id.

Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a claim in a complaint for " failure to state a claim upon which relief can be granted." In evaluating such a motion, a court must " assume the truth of the plaintiff's well-pleaded factual allegations and view them in the light most favorable to the plaintiff." Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007). In ruling on such a motion, the dispositive inquiry is " whether the complaint contains 'enough facts to state a claim to relief that is plausible on its face.'" Id. (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). Granting a motion to dismiss " is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the liberal rules of pleading but also to protect the interests of justice." Dias v. City & County of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (quotation marks omitted). " Thus, 'a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.'" Id. (quoting Twombly, 550 U.S. at 556).


Plaintiff's TAC is eighty-two pages in length and contains 379 numbered paragraphs. (ECF No. 138.) In this section, the Court sets forth only those facts necessary for the Court's ruling on the pending Motions.[1] As required on a motion to dismiss, all facts pled in the TAC are taken as true, and are viewed in the light most favorable to Plaintiff.

Plaintiff Keifer Johnson is a student at Defendant Western State University (" Western" ), a four-year public liberal arts college in Gunnison, Colorado. (TAC ¶ 3.) The other Defendants hold various positions at Western: Brad Baca is Western's President, Gary Pierson is the Vice President of Student Affairs and Dean of Students, Sara Phillips is the Title IX Coordinator, Chris Luekenga is the Associate Vice President for Student Affairs, and Susan Coykendall is an employee-faculty member. ( Id. ¶ 5.)

In May 2013, Plaintiff was a freshman student at Western on a partial athletic scholarship for cross-country and track and field. (TAC ¶ 12.) During the spring 2013 semester, Plaintiff served as a teaching assistant for an English course. ( Id. ¶ 13.) This position consisted primarily of tutoring other students, and Plaintiff received three credit hours for his work. ( Id. ¶ 14.) Onna Gould was a freshman student in the class for which Plaintiff was a teaching assistant. ( Id. ¶ 16.)

During finals week of spring 2013, Plaintiff and Ms. Gould began a sexual relationship. ( Id. ¶ 17.) They had both read and were interested in the " Fifty Shades of Grey" erotic novels, and frequently assumed dominant/submissive roles in bond

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age and light sado-masochism. ( Id.) They also frequently exchanged poetry, both by known authors and of their own writing, and this poetry often reflected their role playing. ( Id. ¶ 18.)

Plaintiff's relationship with Ms. Gould continued through the summer of 2013, and they continued to exchange e-mail messages, text messages, and messages through their Facebook accounts related to the dominant/submissive roles they assumed in their sexual encounters. ( Id. ¶ 21.) On June 28, 2013, Plaintiff sent a letter to Ms. Gould (" Dear Onna Letter" ) which contained multiple references to sado-masochistic acts that he wished to perform on her. (ECF No. 111-6.) Plaintiff ended his relationship with Ms. Gould on July 27, 2013 by delivering her a letter to her home. (TAC ¶ 29.) For reasons unrelated to her relationship with Plaintiff, Onna Gould did not return to Western for the fall semester of 2013. ( Id. ¶ ¶ 19-20.)

In late July, Angela Gould--Onna Gould's mother--contacted Susan Coykendall, a professor at Western, and indicated that she wished to have Plaintiff expelled from Western. ( Id. ¶ 31.) Ms. Coykendall volunteered to file a complaint on the Gould's behalf because she was not comfortable with a teaching assistant engaging in a relationship with a student. ( Id. ¶ 33.) The Goulds exchanged a number of e-mails with Coykendall about whether to take action against Plaintiff. ( Id. ¶ ¶ 33-37.)

In mid-August 2013, Angela Gould contacted Chris Luekenga and lodged a complaint against Plaintiff. ( Id. ¶ 48.) Angela Gould provided Mr. Luekenga with a copy of a letter that she had written to Plaintiff's parents (ECF No. 111-5), as well as a copy of the Dear Onna Letter. ( Id.) Luekenga responded that the matter had been referred to Western's Title IX coordinator, and that an official Title IX investigation would proceed. ( Id. ¶ 49.) At that point, Sarah Phillips became involved, and began communicating with the Goulds regarding their complaint against Plaintiff. ( Id. ¶ 52.)

On August 17, 2013, Plaintiff received an e-mail message from a professor in the English department stating that Plaintiff would not be permitted to continue as a teaching assistant in the fall 2013 semester. ( Id. ¶ 64.) This e-mail gave Plaintiff no reason for the decision, but directed Plaintiff to contact Western's Student Affairs Office if he had any questions about the decision. ( Id.)

On August 20, 2013, Plaintiff went to see Gary Pierson. ( Id. ¶ 65.) Pierson interviewed Plaintiff at length about his relationship with Onna Gould, including their sexual relationship and whether all sexual encounters were consensual, and showed Plaintiff a copy of the Dear Onna Letter. ( Id.) Plaintiff was forthcoming with information, and responded to all of Pierson's questions. He informed Pierson that he had written the Dear Onna Letter, but denied that there was any misconduct in his relationship with Onna Gould. ( Id. ¶ 68.) Pierson discussed Western's policies concerning student conduct, primarily by directing Plaintiff to the university's website. ( Id. ¶ 69.)

On August 23, 2013, Plaintiff went to the university cafeteria and, in the presence of a food service worker, removed Onna Gould's expired student identification card from his wallet. ( Id. ¶ 77.) Ms. Gould's card was confiscated and Plaintiff's possession of the card was reported to the university. ( Id. ¶ 78.) On August 24, 2013, Plaintiff and several other classmates were caught by a resident assistant sneaking into a university dormitory window. ( Id.) This was also reported to university officials. ( Id.)

On August 26, 2013, Plaintiff received a letter from Chris Luekenga notifying him of a disciplinary hearing scheduled for August

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28, 2013 (" First Disciplinary Proceeding" ). ( Id. ¶ 79.) The First Disciplinary Proceeding arose from three alleged violations of Western's student code: (1) inappropriate behavior towards another student; (2) inappropriate behavior towards cafeteria staff; and (3) use and possession of another student's card. ( Id.) Upon receipt of the letter, Plaintiff immediately called his track coach, and was informed that he was temporarily suspended from the team, pending further consideration of the disciplinary action against him. ( Id. ¶ 82.)

On the same day he received the notice of the hearing, Plaintiff went to speak with Luekenga in his office. ( Id. ¶ 83.) Luekenga explained that the university had received a complaint from an outside party related to Plaintiff's relationship with Onna Gould. ( Id.) As he had with Pierson, Plaintiff was forthcoming about the nature of their relationship, and denied all misconduct. ( ...

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