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Neal v. Colorado State University-Pueblo

United States District Court, D. Colorado

February 16, 2017

GRANT NEAL, Plaintiff,
v.
COLORADO STATE UNIVERSITY-PUEBLO, BOARD OF GOVERNORS OF THE COLORADO STATE UNIVERSITY SYSTEM, ROOSEVELT WILSON, in his official capacity, JENNIFER DELUNA, in her official capacity, LESLEY DIMARE, in her official capacity, KAITLYN BLAKEY, in her official capacity, MARIE HUMPHREY, in her official capacity, UNITED STATES DEPARTMENT OF EDUCATION, UNITED STATES DEPARTMENT OF EDUCATION OFFICE FOR RIGHTS, JOHN B. KING, JR., in his individual and official capacities, CATHERINE LHAMON, in her individual and official capacities, and UNITED STATES OF AMERICA, Defendants.

          RECOMMENDATION ON MOTIONS TO DISMISS

          Craig B. Shaffer, United States Magistrate Judge

         Plaintiff Grant Neal alleges that the Board of Governors of the Colorado State University system (hereinafter referred to as the “Board of Governors”), Colorado State University-Pueblo (“CSU-Pueblo”) and five individuals in their official capacities for CSU-Pueblo (collectively, the “State Defendants”) violated federal and state laws in erroneously finding him responsible for sexual misconduct and suspending him from CSU-Pueblo. Mr. Neal also claims that through its enforcement of a 2011 “Dear Colleague Letter” (“2011 DCL”), the U.S. Department of Education (“DOE”), its Office of Civil Rights (“OCR”) and related federal Defendants[1] pressured the State Defendants to discipline males accused of sexual misconduct, such as Plaintiff, regardless of whether the allegations had merit. Plaintiff seeks judicial review of whether DOE violated the Administrative Procedures Act in promulgating the 2011 DCL.

         The case is before the court on Judge Raymond P. Moore's referral of Defendants' motions (docs. #27, 31) to dismiss the Amended Complaint (“AC, ” doc. #8). Plaintiff waived oral argument (doc. #75), and Defendants did not oppose that waiver. For the reasons that follow, the court recommends granting in part and denying in part the State Defendants' motion. The court recommends granting the Federal Defendants' motion.

         BACKGROUND

         The court draws the following allegations from the AC, which it must accept as true for purposes of the Rule 12(b)(6) arguments.

         I. State Defendants

         A female student in the CSU-Pueblo athletic training program (referred to anonymously as “Complainant”) alleged to the director of athletic training (Dr. Roger Clark) that on Saturday, October 25, 2015, Plaintiff had raped another female student in the athletic training program, referred to anonymously as Jane Doe. AC at ¶¶ 9-10, 90. Plaintiff alleges that his sexual conduct with Ms. Doe was consensual and that Ms. Doe stated and acknowledged several times that their sexual conduct was consensual. AC at e.g., ¶¶ 1, 9, 85, 91-95, 98-99, 114. Plaintiff alleges that “[g]iven Plaintiff's status as a high profile football player, Complainant presumed that Plaintiff had engaged in non-consensual contact with Jane Doe.” AC at ¶ 89.

         Complainant made the allegations without informing Ms. Doe or Plaintiff. Id. at ¶ 91. Her allegations were based upon a conversation she had with Ms. Doe on October 26, occasioned by Complainant noticing a “hickey” on Ms. Doe's neck. Id. at ¶ 89. The athletic training program prohibits trainers (such as Ms. Doe) from “fraterniz[ing] with athletes, and … doing so could result in severe consequences including removal from the Athletic Training Program.” Id. at ¶ 73. See also Id. at e.g., ¶¶ 80, 102. Ms. Doe allegedly had “described the encounter [in which she received the hickey] to Complainant in a manner that would conceal her relationship with Plaintiff, while also protecting her position in the program.” Id. at ¶ 113.

         By sometime on October 27, 2015, Dr. Clark reported the alleged incident to his wife, Laura Clark, another faculty member in the program (Id. at ¶ 97), and to Defendant Roosevelt Wilson, the CSU-Pueblo director of the office of equal opportunity/affirmative action and Title IX coordinator. AC at ¶ 100. On October 27, 2015, Mr. Wilson began investigating the allegations and met with Ms. Doe. Id. at ¶¶ 112, 114. That same day, Marie Humphrey issued a notice of investigation to Plaintiff. The notice stated “that he was ‘being investigated for possible alleged violation of the Code of Student Conduct including Non-consensual Contact and Non-Consensual Sexual Intercourse.' [sic].” Id. at ¶ 117. The notice also prohibited him from further contact with Jane Doe. Id.

         Plaintiff alleges that the CSU-Pueblo Code of Student Conduct (the “Code”) and Sexual Misconduct Policy (the “Policy”) that he received upon acceptance to the school provide accused students the following procedures (among others):

“The right to be fully informed of the nature and extent of all alleged violations contained within the complaint;” “The right to be present for all testimony given and evidence presented before a hearing authority;” “The right to present witnesses and documentary evidence;” “The right to question and/or challenge witnesses and documentary evidence presented by others;” [and] “The right not to have any personal information released by the University to the public without prior consent.”

         AC at ¶ 56 (in part). He further alleges that the “Policy provides that students accused of sexual misconduct are entitled to the hearing process set forth in the Code.” Id. at ¶ 58. “During a disciplinary hearing, both parties may provide information to the hearing authority for consideration, including witness statements and evidence.” Id. at ¶ 64. “Determinations of responsibility are made using the preponderance of the evidence standard, which is defined by the Code as: ‘whether it is more likely than not that a Respondent committed the alleged violation(s).'” Id. at ¶ 65. The Policy also provides for appeals on several grounds. Id. at ¶ 68.

         Plaintiff alleges that from inception to completion, CSU-Pueblo railroaded him in order to find him guilty of the accused sexual misconduct regardless of the lack of evidence or merit in the allegations. He alleges that CSU-Pueblo did so because of gender bias against accused male athletes, the school's self-interest in its reputation, and the school's financial interest (i.e., its federal funding) in demonstrating to Federal Defendants that it would discipline accused males. He alleges for instance that

Wilson failed to consider Jane Doe's motivation for insinuating to Complainant that something improper may have occurred, when Complainant confronted Jane Doe about the hickey on her neck. Namely, recognizing the potential consequences of being disciplined for engaging in a relationship with a football player, Jane Doe described the encounter to Complainant in a manner that would conceal her relationship with Plaintiff, while also protecting her position in the program.
In fact, at no time did Jane Doe tell Defendant Wilson that she was involved in non-consensual sex with Plaintiff. To the contrary, at her meeting with Defendant Wilson on October 27, Jane Doe informed Mr. Wilson: “our stories are the same and he's a good guy. He's not a rapist, he's not a criminal, it's not even worth any of this hoopla!” Nonetheless, CSUP pursued an investigation calculated to lead to the foregone conclusion that Plaintiff was responsible for the misconduct alleged.
Defendant Wilson accepted the statements of subjective, hearsay witnesses as credible and ignored evidence tending to exculpate Plaintiff, all while demonstrating an inherent prejudice against male athletes.

AC at ¶¶ 113-116.

         During the investigation, Wilson met with Plaintiff twice. In the first meeting, October 29, 2015, Plaintiff alleges that

Wilson began the meeting by interrogating Plaintiff, asking him three times: “Did you rape [Jane Doe]?” By the third time, Defendant Wilson was standing up and looming over Plaintiff, apparently intending to intimidate him. * * * Defendant Wilson indicated to Plaintiff that the Complainant had described the encounter as an egregious act of rape and threatened that “he would get to the bottom of it.”

AC at ¶¶ 122, 124. For the second meeting, November 20, 2015, Plaintiff brought the head football coach, John Wristen, as his advisor. During the November 20 meeting “Defendant Wilson indicated that there were ultimately four individuals who came forward to report the encounter to the Title IX office.” Id. at ¶ 132. However, until Wilson completed the investigation, he failed to inform Plaintiff who the four witnesses were. In addition, at the November 20 meeting,

[w]hen Coach Wristen tried to make a statement in Plaintiff's defense, Defendant Wilson responded that he was “The Chief, ” in a clear effort to assert his authority over a fellow CSUP colleague.

         AC at ¶ 131. Plaintiff further alleges that during the investigation, “Defendant Wilson professed that he was in charge of the investigation and would be the only person to declare someone a witness in this matter, ” which “depriv[ed] Plaintiff of the opportunity to identify witnesses in support of his defense.” Id. at ¶ 142.

         From his investigation, Wilson prepared a report dated December 3, 2015. AC at ¶ 112. Wilson provided his report to Defendant Jennifer DeLuna, the CSU-Pueblo director of diversity and inclusion. That same day, Plaintiff was given less than 24 hours' notice that Ms. DeLuna would hold an “informal disciplinary hearing.” Id. at ¶ 133. Plaintiff alleges that the Code of Conduct does not define such a procedure (Id.), and that the Code required the notice of hearing to include “a detailed description of the allegations to be considered.” Id. at ¶ 135. The notice, however, stated only the same description as the notice of investigation: that Plaintiff “may have violated the Code of Student Conduct, Sexual Misconduct (non-consensual sexual intercourse).” Id. Plaintiff alleges that the short notice deprived him of the ability to formulate a defense.

         On December 4, 2015 DeLuna held the informal hearing with Plaintiff and his advisor, Chris Turner. Plaintiff alleges this “hearing” was “in actuality … nothing more than an investigatory meeting …[and] a sham” (Id. at ¶ 136) in which he was handed Wilson's 14 page investigative report for the first time, tasked with reviewing it, and was not permitted to copy it or take notes. Id. at ¶ 139. Plaintiff made “repeated requests [for a copy of the report … but] he did not obtain a full copy of the Report until after his appeal was denied.” Id. at ¶ 151.

         The informal hearing was the first time that CSU-Pueblo informed Plaintiff of the identities of the witnesses with whom Wilson had spoken in the investigation. Id. and ¶ 149. The witnesses identified in the Wilson report apparently included the Complainant, Ms. Doe, Dr. Clark, and Mrs. Clark. See, e.g., Id. at ¶¶ 141, 144, 145. However, Plaintiff also alleges that the report “failed to disclose to Plaintiff the identities of the remaining adverse witnesses referenced in the Report, thus hindering Plaintiff's ability to challenge their credibility and confront all witnesses against him.” Id. at ¶ 149.

         Ms. DeLuna did not hear from any witnesses nor (apparently) receive any documentary evidence at the December 4 meeting. Plaintiff informed DeLuna in this meeting that while Wilson's report mischaracterized Ms. Doe as not intending to have sex at all the evening of October 25, “Jane Doe clearly stated that she advised Plaintiff that she did not want to have unprotected sex because she was not on birth control; she never stated that she did not want to have sex at all.” AC at ¶ 141.[2]

         Regarding the December 4 meeting, Plaintiff also alleges that

[u]pon learning that Dr. Clark and Mrs. Clark had reported the most egregious and damaging allegations to CSUP's Title IX office, Plaintiff expressed his concern regarding a potential conflict of interest; namely, Dr. Clark and Mrs. Clark hold Jane Doe's degree, as a member of the Athletic Training Program.

         AC at ¶ 148. Plaintiff alleges that both Dr. and Mrs. Clark knew only what the Complainant had said to Dr. Clark, and that both Dr. and Mrs. Clark coerced or pressed Ms. Doe into believing or admitting that the sexual conduct in question was inappropriate or improper. Id. at ¶¶ 144-147.

         The report included Ms. Clark's comment recognizing that Ms. Doe did not want Plaintiff to be investigated. Id. at ¶ 147.

         On December 8, 2015, Plaintiff had “a follow up meeting to clarify the information provided by Plaintiff on December 4, 2015. Plaintiff reiterated that he did not penetrate Jane Doe prior to putting on a condom, and that they engaged in consensual sexual activity.” Id. at ¶ 152.

[W]hen Plaintiff questioned Defendant DeLuna at the meeting of December 8, 2015 regarding whether he could identify witnesses to her or whether she needed to speak with anyone about his character, she declined, stating her review was based only on what was in the file and the information gathered at the Hearing.

Id. at ¶ 143.

         “[O]n December 18, 2015, Defendant DeLuna notified Plaintiff that he had been found responsible for ‘Sexual Misconduct' in violation of CSUP's Code of Conduct (the ‘Decision'). CSUP assessed an unwarranted and severe penalty of suspension for the duration of Jane Doe's education at CSUP (the ‘Sanction').” AC at ¶ 11. The Decision “repeatedly refers to Jane Doe as the complainant, when in fact, the complainant was an uninvolved third-party.” Id. at ¶ 153. Plaintiff alleges the Decision was erroneous. The Decision imposed sanctions, including “suspension pending Jane Doe's graduation or disenrollment from campus.” Id.

         On January 6, 2016, Plaintiff appealed to Marie Humphrey, the CSU-Pueblo Dean of Students and Residence Life. On January 19, 2016, Humphrey denied the appeal. Plaintiff alleges that the procedural flaws and bias continued on his appeal when the hearing officer did not consider material evidence that Plaintiff offered from his roommates, of which Plaintiff had been unaware prior to the Decision. AC at ¶ 186 (third bullet point).[3]

Because of the Decision and Sanction,
Plaintiff is unable to gain admission to another university to obtain his degree and the significant monies spent on obtaining a college education at CSUP have been squandered. In addition to the damages sustained by Plaintiff, including his inability to continue his education and receive his degree, the loss of his wrestling and football scholarships, and his removal from the football team Plaintiff has sustained tremendous damages to his future education, career and athletic prospects, and reputation.

Id. at ¶ 15.

         Plaintiff alleges that the disciplinary matter was procedurally inadequate. He identifies several procedures that he alleges CSU-Pueblo should have provided but did not, among them: adequate notice of the charges being investigated; identification of the adverse witnesses; an evidentiary hearing for witnesses to testify subject to cross-examination and for Plaintiff to present other evidence in his defense; and adequate notice of the allegations before such hearing. Plaintiff further alleges that the evidentiary standard CSU-Pueblo used - preponderance of the evidence - was unfair and insufficient for the criminal-like charges and potential sanctions.

         Plaintiff also alleges several procedural irregularities, i.e., deviations from the process that the Code or Policy[4] provided. For example, Plaintiff alleges that on November 17, 2015, Humphrey assessed an interim suspension against Plaintiff. AC at ¶¶ 127, 129. Plaintiff alleges that the Code limits the circumstances in which interim measures can be imposed, and none of the criteria were applicable to him. Id. ¶¶ 126, 130. Plaintiff alleges further facts in support regarding an October 30, 2015 football trip for which Humphrey and Wilson authorized Plaintiff and Jane Doe to travel together and stay in the same hotel. Id. at ¶ 130. Plaintiff also alleges that DeLuna gave Plaintiff less than 24 hours' notice that she would hold an “informal disciplinary hearing” without a description of either the specific allegations or evidence that would be considered. Id. at ¶¶ 133, 135. Plaintiff alleges that the Code and Policy do not define an informal hearing, required description of the fact allegations to be considered (i.e., the Wilson report), and more timely notice to allow him to prepare. Id. at ¶¶ 133-135.

         Based on these fact allegations, Mr. Neal claims that State Defendants deprived him of procedural due process under the 14th Amendment of the U.S. Constitution. Plaintiff further alleges that in conducting the disciplinary matter, State Defendants discriminated against him on the basis of his gender in violation of Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681 et seq. (“Title IX”), breached CSU-Pueblo's contract with Plaintiff, and breached the covenant of good faith and fair dealing. Plaintiff further claims promissory estoppel against CSU-Pueblo. See AC at Counts I-V. In each of those counts, Plaintiff seeks damages. Through a declaratory judgment claim, Plaintiff also seeks injunctive relief: restoral of his reputation, expungement of his disciplinary record, expungement of his suspension, destruction of any record of the complaint against Plaintiff, and readmission to CSU-Pueblo. AC at Count VII, ¶¶ 415-19.

         II. Federal Defendants

         Plaintiff alleges that Federal Defendants coerced the State Defendants to conduct the disciplinary matter in the manner that Plaintiff alleges violated Title IX and his due process rights. AC at ¶ 201-213. Plaintiff alleges that on April 4, 2011, OCR issued the 2011 DCL. Id. at ¶ 199. He alleges that the 2011 DCL required schools, including CSU-Pueblo, to conduct disciplinary matters regarding alleged sexual violence as a form of sexual discrimination or harassment subject to Title IX (a) without providing the accused the right of cross-examination, (b) using the preponderance of evidence standard, and (c) providing that an unsuccessful complainant can appeal, which Plaintiff characterizes as a form of double jeopardy. Id. at ¶¶ 6, 183, 202-204.

         Plaintiff alleges that the 2011 DCL changed the substantive law, such that DOE was required to follow notice and comment rulemaking procedures to implement that change. AC at e.g., ¶¶ 3, 7, 198, 201. DOE did not follow those procedures. Plaintiff claims the 2011 DCL is therefore void under the Administrative Procedure Act, 5 U.S.C. § 553. Id. at ¶ 8.

         Plaintiff also alleges that DOE aggressively enforced the 2011 DCL in a manner that pressured schools (including CSU-Pueblo) to find male students responsible for sexual misconduct and impose severe sanctions regardless of the evidence. Plaintiff points to DOE statements (by Defendant Lhamon) to a Senate committee that DOE would revoke federal funding to schools found noncompliant with the 2011 DCL (AC at ¶¶ 231, 234-236); “more than 249 investigations against colleges and universities” for reviewing their compliance with the DCL (Id. at ¶ 229); and draconian settlement agreements in which DOE required schools to admit that their disciplinary procedures or policies violated the 2011 DCL to avoid the DOE revoking their federal funding. Id. at ¶¶ 230, 237-238.

         Plaintiff alleges that in his disciplinary matter, CSU-Pueblo discriminated against him on the basis of gender, denied his due process, and arrived at an erroneous outcome at least in part because CSU-Pueblo was attempting to conform to DOE/OCR's enforcement of the 2011 DCL:

In light of the evidence (or lack thereof), the Decision can only be explained by CSUP's discriminatory bias against males and its underlying motive to protect the University's reputation and financial wellbeing, by acting in compliance with the Dear Colleague Letter.
Upon information and belief, in response to the significant pressure placed on the CSUP Defendants by the Federal Defendants to comply with the mandates of the 2011 Dear Colleague Letter, CSUP conducted a substantially flawed and biased investigation process leading to an erroneous Decision and Sanction.

AC at ¶¶ 13-14.

         ANALYSIS

         I. Standards of Review

         A. Rule 12(b)(1)

         Federal courts, as courts of limited jurisdiction, must have a statutory basis for their jurisdiction. See Morris v. City of Hobart, 39 F.3d 1105, 1111 (10th Cir. 1994) (citing Castaneda v. INS, 23 F.3d 1576, 1580 (10th Cir. 1994)). Pursuant to Federal Rule of Civil Procedure 12(b)(1), the court may dismiss a complaint for lack of subject matter jurisdiction. The determination of a court's jurisdiction over subject matter is a question of law. Madsen v. U.S. ex rel. U.S. Army, Corps of Eng'rs, 841 F.2d 1011, 1012 (10th Cir. 1987). “A court lacking jurisdiction cannot render judgment but must dismiss the cause at any stage of the proceedings in which it becomes apparent that jurisdiction is lacking.” Basso v. Utah Power & Light Co., 495 F.2d 906, 909 (10th Cir. 1974).

         A motion to dismiss for a lack of subject matter jurisdiction may take two forms. See Holt v. United States, 46 F.3d 1000, 1002 (10th Cir. 1995). It may facially attack or it may challenge the facts upon which subject matter jurisdiction depends. Id. at 1002-1003.

When reviewing a factual attack on subject matter jurisdiction, a district court may not presume the truthfulness of the complaint's factual allegations. A court has wide discretion to allow affidavits, other documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts under Rule 12(b)(1). In such instances, a court's reference to evidence outside the pleadings does not convert the motion to a Rule 56 motion.

Id. at 1003 (internal citations omitted); see also Cooke v. Hickenlooper, No. 13-cv-01300- MSK-MJW, 2013 WL 6384218, at *2, n.4 (D. Colo. Nov. 27, 2013), aff'd in part sub nom. Colo. Outfitters Ass'n v. Hickenlooper, 823 F.3d 537 (10th Cir. 2016). “The burden of establishing subject-matter jurisdiction is on the party asserting jurisdiction.” Montoya v. Chao, 296 F.3d 952, 955 (10th Cir. 2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).

         B. Rule 12(b)(6)

         Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.”

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” … A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. ... The plausibility standard is not akin to a “probability requirement, ” but it asks for more than a sheer possibility that a defendant has acted unlawfully.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007)). In the Tenth Circuit,

[t]he Twombly/Iqbal standard is a middle ground between heightened fact pleading, which is expressly rejected, and allowing complaints that are no more than labels and conclusions or formulaic recitation of the elements of a cause of action, which the Court stated will not do. In other words, Rule 8(a)(2) still lives.... Under Rule 8, specific facts are not necessary; the statement need only give the defendant fair notice of what the ... claim is and the ground upon which it rests.

Pueblo of Jemez v. United States, 790 F.3d 1143, 1172 (10th Cir. 2015) (internal brackets omitted; quoting Khalik v. United Air Lines, 671 F.3d 1188, 1191-92 (10th Cir. 2012)).

         “Determining whether a complaint states a plausible claim for relief will … be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 679; see also Pueblo of Jemez, 790 F.3d at 1172. The court must construe the fact allegations and any reasonable inferences from them in the light most favorable to Plaintiff. Sanchez v. Hartley, 810 F.3d 750, 754 (10th Cir. 2016).

         II. State Defendants' Motion to Dismiss

         A. CSU-Pueblo's Capacity to Be Sued.

         State Defendants argue that CSU-Pueblo is only a campus of CSU and is not an entity capable of being sued. They further argue that the Board of Governors is the appropriate party to sue, and that the claim against CSU-Pueblo should accordingly be dismissed. Doc. #27 at p. 1, n.1. They rely upon Roberts v. Colorado State Board of Agriculture, 998 F.2d 824, 826-27 (10th Cir. 1993); C.R.S. §§ 23-30-102(1) and 23-31-101 et seq. Plaintiff did not address this argument. State Defendants are correct. Roberts, 998 F.3d at 827; Persik v. Colo. State Univ., 60 F.App'x 209, 211 (10th Cir. 2003) (citing Roberts).[5] The court recommends that CSU-Pueblo be dismissed as a party, as the Board of Governors is the appropriate person to sue.

         B. Title IX Claim

         Under Title IX of the Civil Rights Act, “[n]o person in the United States shall, on the basis of sex, [6] 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.” 20 U.S.C. § 1681(a).

The statute's only express enforcement mechanism, § 1682, is an administrative procedure resulting in the withdrawal of federal funding from institutions that are not in compliance. In addition, this Court has recognized an implied private right of action … [for which] both injunctive relief and damages are available.

Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246, 255 (2009).

         State Defendants first argue that the Title IX claim should be dismissed as to the individual Defendants (Wilson, DeLuna, DiMare, Blakey and Humphrey) because “Title IX … [does] not authorize[e] suit against school officials, teachers, and other individuals.” Fitzgerald, 555 U.S. at 257. Plaintiff originally sued the individual State Defendants in their official and individual capacities. After the motions to dismiss were briefed, Plaintiff dismissed the claims against Wilson, DeLuna, DiMare, Blakey and Humphrey in their individual capacities. Doc. #77. This leaves these Defendants only in their official capacities. “Official capacity suits ... generally represent only another way of pleading an action against an entity of which an officer is an agent.” Kentucky v. Graham, 473 U.S. 159, 165-66 (1985) (internal quotation marks omitted). Thus, “[c]laims brought against state employees in their official capacities are equivalent to claims brought against the state itself.” Johnson v. W. State Univ., 71 F.Supp.3d 1217, 1229-30 (D. Colo. 2014) (citing Graham; McMillian v. Monroe Cty., 520 U.S. 781, 785 n. 2 (1997); Moss v. Kopp, 559 F.3d 1155, 1168 (10th Cir. 2009)). “As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity.” Graham, 473 U.S. at 166. The Board of Governors is a Defendant. It appears that the Tenth Circuit has not decided whether official capacity claims against government officials are duplicative of a claim against the government agency. See, e.g., London v. Beaty, 612 F.App'x 910, 912 n.2 (10th Cir. 2015); Brooks v. Bd. of Educ., Farmington Mun. Sch., 617 F.App'x 887, 891, n.2 (10th Cir. 2015). This court and others have found official capacity claims are duplicative of the claim against the agency and should be dismissed on that basis. See, e.g., Ulibarri v. City & Cty. of Denver, No. 07-cv- 01814-WDM-MJW, 2010 WL 5287495, at *1 (D. Colo. Dec. 7, 2010) (claims under the Americans with Disabilities Act and the Rehabilitation Act); Miller v. Brungardt, 916 F.Supp. 1096, 1098 (D. Kan. 1996) (Title VII claims brought against employees in official capacities were duplicative of the claim against the employer). Plaintiff's claim against Wilson, DeLuna, DiMare, Blakey and Humphrey in their official capacities is duplicative of the claim against the Board of Governors, and on that basis, the court recommends dismissing the individuals from the Title IX claim.

         The Board of Governors next argues that Plaintiff fails to plausibly allege the gender discrimination element of a Title IX claim because Plaintiff “does not and cannot allege any actual nexus between his gender and his purported mistreatment.” Doc. #27 at p. 6. Neither the Supreme Court nor the Tenth Circuit has yet addressed a Title IX claim for a school's alleged discrimination in a disciplinary proceeding. ...


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