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Doe v. Distefano

United States District Court, D. Colorado

March 19, 2019

JOHN DOE, Plaintiff,
PHILLIP DISTEFANO, Chancellor for the University of Colorado Boulder, and THE BOARD OF REGENTS FOR THE UNIVERSITY OF COLORADO, Defendants.



         This lawsuit arises out of an investigation by the University of Colorado at Boulder (the “University”) into alleged sexual misconduct by Plaintiff John Doe (“Doe”) and Doe's ultimate expulsion from the University as a result of the investigation. (ECF No. 11.) Doe brings claims against University Chancellor Phillip DiStefano (“DiStefano”) and the Board of Regents for the University (“Board of Regents”) (together, “Defendants”) for breach of contract, breach of the implied covenant of good faith and fair dealing, estoppel, and violation of due process provisions of the United States constitution under 42 U.S.C. § 1983, and seeks a declaratory judgment for alleged violations of the due process provisions of the United States and Colorado Constitutions. (ECF No. 11 ¶¶ 96-149.)

         Defendants filed a partial motion to dismiss (the “Motion”) Doe's common law contractual claims and his Colorado constitutional claim. (ECF No. 14.) In response, Doe withdrew his claims under the Colorado Constitution. (ECF No. 20 at 2.) For the reasons discussed below, the Court dismisses some of Doe's common law contractual claims with prejudice, and some without prejudice.


         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).


         The Court assumes the following to be true for purposes of Defendants' Motion.

         A. Investigation & Expulsion

         As of April 2016, Plaintiff was a student at the University and a member of the Phi Kappa Psi fraternity. (ECF No. 11 ¶¶ 1, 60.) In early April 2016, a female undergraduate student (“Complainant”) attended a party at the Phi Kappa Psi house and thereafter reported to officers of the Boulder Police Department (“BPD”) that she had possibly been drugged and had sex that she did not remember with someone, whom she later identified as Doe. (Id. ¶¶ 63-69.)[1] On April 11, 2016, the BPD reported allegations of possible drugging and sexual assault of Complainant to the University's Office of Institutional Equity and Compliance (“OIEC”). (Id. ¶ 70.)[2]

         In late September 2016, OIEC obtained a redacted copy of the BPD report. (Id. ¶ 73.) On September 30, 2016, OIEC issued a Notice of Investigation to Doe alleging sexual misconduct with Complainant in violation of Section G2 of OIEC's rules. (Id. ¶ 75.) OIEC investigated the allegations by speaking with 23 witnesses and reviewing documentation in the form of text messages, a video, materials and information from the investigation by the BPD and Boulder County District Attorney, and an examination by a Sex Assault Nurse Examiner. (Id. ¶ 79.) On January 24, 2017, OIEC produced a final report that concluded that it was “more likely than not” that Doe engaged in nonconsensual sexual intercourse with Complainant. (Id. ¶¶ 84, 85.h.) As a result of these findings, the University expelled Doe in February 2017. (Id. ¶ 1.)

         B. The University's Policies

         Consistent with its Title IX obligations, the University has adopted policies and procedures for investigating and adjudicating alleged sexual misconduct. (Id. ¶ 52; ECF Nos. 11-1 (Process and Procedures 2015-2016, effective July 1, 2015) & 11-2 (Process and Procedures 2016-2017, effective July 1, 2016).) These documents set forth prohibited conduct, the investigatory process, and disciplinary actions for engaging in prohibited conduct. (ECF No. 11 ¶¶ 53-59.)

         The cover page of Process and Procedures 2015-2016 (“2015-2016 Policy”) states that it is an “interim document and any material changes shall be published on or before January 1, 2016.” (ECF No. 11-1 at 1.) The cover page of Process and Procedures 2016-2017 (“2016-2017 Policy”) states that the document is “intended to provide general information to members of the university community” and “is not intended to, nor does it, create a contract between the OIEC or [the University] and community members.” (ECF No. 11-2 at 1.)

         The Amended Complaint does not state which of the two policies applies, or whether any “material changes” to the 2015-2016 Policy were published before January 1, 2016. Doe's response to the Motion states that OIEC employed the procedures listed in the 2016-2017 Policy in its investigation of Doe, although Doe contends that OIEC should have used the 2015-2016 Policy. (ECF No. 20 at 5.) Throughout the Amended Complaint, Doe jointly ...

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