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Doe v. DiStefano

United States District Court, D. Colorado

May 7, 2018

JOHN DOE, Plaintiff,
PHILIP DISTEFANO, in his official capacity as Chancellor of the University of Colorado, Boulder, Defendant.


          William J. Martínez Judge

         Plaintiff was expelled from the University of Colorado at Boulder (“the University”) in August 2014 after the University's Title IX office concluded that he had sexually assaulted two female students in separate incidents. Plaintiff sues Defendant Philip DiStefano, Chancellor of the University (“Defendant”), under a theory that the University's actions violated Plaintiff's procedural due process rights. Plaintiff requests that the Court order Defendant to purge an adverse notation from Plaintiff's University transcript. (ECF No. 102.)

         Currently before the Court is Defendant's Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), arguing that Plaintiff has failed to adequately plead a procedural due process violation. (ECF No. 112.) For the reasons explained below, Defendant's motion is granted as to any claim from Plaintiff based on a purported liberty interest in his reputation, but otherwise denied.

         I. RULE 12(b)(6) STANDARD

         A. General Standard

         Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” The 12(b)(6) standard requires the Court to “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, LLC 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 Atl. Corp. v. Twombly, 550 U.S. 544, 570 (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 & Cnty. of Denver, 567 F.3d 1169, 1178 (10th Cir. 2009) (internal 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).

         B. Documents Outside the Pleadings

         DiStefano asks this Court to consider additional documents he has placed in the record, namely:

• the final report of the investigation into the alleged assaults at issue in this lawsuit (ECF Nos. 112-1);
• the University's Student Conduct Code Policies & Procedures for the 2013-14 academic year (ECF No. 112-2);
• an April 17, 2014 letter from the University to Plaintiff, announcing his summary suspension pending investigation of the accusations made against him (ECF No. 112-3);
• an April 21, 2014 letter from the University to Plaintiff, notifying him of the basis for the investigation into his conduct (ECF No. 112-4);
• a May 7, 2014 letter from the University to Plaintiff, providing more detail on the accusations made against him (ECF No. 112-5);
• a June 10, 2014 letter from the University to Plaintiff, notifying him of the basis for the investigation into his conduct with respect to a second alleged victim (ECF No. 112-6).

         The Court may consider these documents if they are (1) “mentioned in the complaint, ” (2) “central to [the] claims [at issue], ” and (3) not challenged as inauthentic. Toone v. Wells Fargo Bank, N.A., 716 F.3d 516, 521 (10th Cir. 2013).

         The Court finds that only the first two documents have any potential relevance to the outcome explained below. As to those two documents, all three Toone elements are satisfied. Both documents are frequently mentioned, sometimes quoted, and generally relied upon in the currently operative complaint as evidence of Defendant's liability. (See ECF No. 102 ¶¶ 12-13, 46, 63 (report of the investigation); id. ¶¶ 12-13, 26-35 (Student Conduct Code).) Thus, these documents are both “mentioned” and “central” to Plaintiff's claims. Moreover, Plaintiff does not argue that these documents are inauthentic. The Court will therefore consider them for purposes of the Rule 12(b)(6) analysis below. However, the Court emphasizes that it considers these documents as evidence of what they say, not necessarily as evidence that what they say is true.


         A. Early Stages of this Lawsuit

         This lawsuit has already been through one round of motions to dismiss. Plaintiff originally sued the University itself along with some of the University's employees (“Individual Defendants”) involved in the investigation of his alleged sexual misconduct. (See ECF No. 1 (original complaint); ECF No. 26 (first amended complaint).) Plaintiff claimed that the University had violated Title IX of the Civil Rights Act of 1964, 20 U.S.C. §§ 1681 et seq. (“Title IX”), because the University's investigation and its outcome were both allegedly motivated by pervasive anti-male bias amounting to sex discrimination, which Title IX prohibits. Plaintiff also accused the Individual Defendants of violating his procedural due process rights.

         The Individual Defendants soon moved to dismiss (ECF No. 28), followed a couple of months later by the University's separate motion to dismiss (ECF No. 52). The Court resolved those two motions on May 26, 2017 (“Prior Order”). See Doe v. Univ. of Colorado, 255 F.Supp.3d 1064 (D. Colo. 2017) (ECF No. 91).

         B. Factual Allegations

         The Prior Order provides an extensive account of the relevant factual allegations. See id. at 1069-73. The following summary is enough for present purposes.

         The University's Title IX office received an anonymous tip in April 2014, that Plaintiff had raped two female University students-“Jane Doe 1” and “Jane Doe 2”-in separate incidents. The Title IX office summarily suspended Plaintiff based only on this tip. It then assigned investigative duties to Alexandra Tracy-Ramirez (“Tracy-Ramirez”).

         From late April through mid-July 2014, Tracy-Ramirez interviewed Jane Doe 1, Jane Doe 2, and ten potential witnesses. Tracy-Ramirez met in person with Plaintiff at least twice and also communicated with him in writing, but Plaintiff and/or his attorney repeatedly represented that they did not have enough information to respond adequately to the charges against him. Plaintiff says he therefore felt constrained to respond only in writing, and only through basic denials of the specific accusations.

         On July 24, 2014, Tracy-Ramirez issued a written report documenting and evaluating her investigation. In that report, she concluded it was more likely than not that Plaintiff had sexual intercourse with Jane Doe 1 knowing that Jane Doe 1 was, at the time, too intoxicated to consent to such sexual activity. As for Jane Doe 2, who was not intoxicated at the time of the alleged incident, Tracy-Ramirez concluded it was more likely than not that Plaintiff forced himself sexually upon her despite repeated protestations.

         The following day, a University review panel approved Tracy-Ramirez's report. Then, on August 26, 2014, the University's Office of Student Conduct chose to impose a sanction of permanent expulsion. The University also placed a permanent notation on Plaintiff's transcript stating that he had violated the University's sexual conduct standards. Likely anticipating this possibility, Plaintiff had by then already transferred to another university, but he continues to fear the consequences of this notation on his transcript when it is seen by graduate schools and employers.

         C. Resolution of Defendants' Motions

         The University's previous motion to dismiss argued that Plaintiff had failed to plausibly plead anti-male bias, so his Title IX cause of action failed as a matter of law. The Court agreed and dismissed that claim. See Doe, 255 F.Supp.3d at 1073-79.

         The Individual Defendants' motion to dismiss argued, among other things, that they were entitled to qualified immunity and so could not be sued for alleged procedural due process violations. The Court again agreed. See id. at 1083-85.

         At that point, the only remaining viable claim was against the University itself for a violation of procedural due process. But the Eleventh Amendment provides sovereign immunity to the University for any action claiming damages. See id. at 1081. Thus, Plaintiff was limited to requesting injunctive relief, such as an order that the University expunge the disciplinary notation from his transcript. See id. at 1081-82. The Court noted, however, that it was not clear whether Plaintiff had sued the proper defendant, i.e., the state official charged by law with ensuring that transcript notations are disclosed to third-party requestors. See id. at 1082-83. The Court therefore gave Plaintiff an opportunity to amend his complaint and name the proper defendant. Id. at 1083.

         D. The Second ...

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