United States District Court, D. Colorado
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS
William J. Martínez Judge
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.)
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.
RULE 12(b)(6) STANDARD
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).
Documents Outside the Pleadings
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.
• an April 17, 2014 letter from the University to
Plaintiff, announcing his summary suspension pending
investigation of the accusations made against him (ECF No.
• 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
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).
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.
FACTS & PROCEDURAL HISTORY
Early Stages of this Lawsuit
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.
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).
Prior Order provides an extensive account of the relevant
factual allegations. See id. at 1069-73. The
following summary is enough for present purposes.
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
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.
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.
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.
Resolution of Defendants' Motions
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.
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
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
The Second ...