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Doe v. Distefano

United States District Court, D. Colorado

June 5, 2019

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


          William J. Mart nez United States District Judge.

         Plaintiff was expelled from the University of Colorado at Boulder (“the University, ” unless the context requires otherwise) in August 2014 after the University's Title IX office concluded that he had sexually assaulted two female students in separate incidents. Plaintiff filed this suit about six weeks before his expulsion, before the University's investigator had reached any conclusions. (ECF No. 1.)

         The Court has previously issued two extensive orders in this case resolving motions to dismiss. See Doe v. Univ. of Colo., 255 F.Supp.3d 1064 (D. Colo. 2017) (ECF No. 91) (“Doe I”); Doe v. DiStefano, 2018 WL 2096347 (D. Colo. May 7, 2018) (ECF No. 133) (“Doe II”). These orders have narrowed the issues here to one claim- violation of procedural due process-asserted against one defendant, Philip DiStefano, Chancellor of the University. DiStefano (“Defendant”) is the appropriate defendant to name under the doctrine of Ex parte Young, 209 U.S. 123 (1908), in light of the relief Plaintiff requests. Specifically, Plaintiff requests that the Court order Defendant to purge an adverse notation from Plaintiff's University transcript. (ECF No. 102.)

         This case is set for a bench trial to begin on July 22, 2019. Currently before the Court is Plaintiff's Motion for Summary Judgment. (ECF No. 112.) For the reasons explained below, the Court denies the motion.


         Summary judgment is warranted under Federal Rule of Civil Procedure 56 “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-50 (1986). A fact is “material” if, under the relevant substantive law, it is essential to proper disposition of the claim. Wright v. Abbott Labs., Inc., 259 F.3d 1226, 1231-32 (10th Cir. 2001). An issue is “genuine” if the evidence is such that it might lead a reasonable trier of fact to return a verdict for the nonmoving party. Allen v. Muskogee, 119 F.3d 837, 839 (10th Cir. 1997).

         In analyzing a motion for summary judgment, a court must view the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). In addition, the Court must resolve factual ambiguities against the moving party, thus favoring the right to a trial. See Houston v. Nat'l Gen. Ins. Co., 817 F.2d 83, 85 (10th Cir. 1987).


         The undersigned's Revised Practice Standards impose the following requirement on a summary judgment movant:

All motions for summary judgment . . . must contain a section entitled “Movant's Statement of Material Facts.” This Statement shall set forth in simple, declarative sentences, all of which are separately numbered and paragraphed, each material fact the movant believes supports movant's claim that movant is entitled to judgment as a matter of law. Each statement of fact must be accompanied by a specific reference to supporting evidence in the record.

         WJM Revised Practice Standard III.E.3. Plaintiff's first statement of fact, however, is as follows:

This Court is well versed in the facts of this case, and as stated in its order dated May 7, 2018 [Doe II], provided “an extensive account of the relevant factual allegations” in its order dated May 26, 2017 [Doe I], which are hereby incorporated by reference in the interest of judicial efficiency.

(ECF No. 161 at 3, ¶ 1.)[1] Plaintiff then goes on to set forth “a requisite brief summary of the relevant undisputed facts, ” many of which are argumentative interpretations of supposedly undisputed facts (not simple, declarative sentences), sometimes supported by nothing more than this Court's Doe I summary of Plaintiff's allegations (not citations to evidence in the record). (Id. at 3-5.)

         Defendant, by contrast, sets forth simple statements of fact that he deems relevant to the Court's disposition, supported by competent evidence. (ECF No. 168 at 6-10.) Plaintiff, in reply, either admits these statements or refuses to either admit or deny, adding that none of Defendant's assertions are “material” to the motion. (ECF No. 175 at 5-8.)

         The undersigned's Revised Practice Standards do not permit a refusal to admit or deny. See WJM Revised Practice Standards III.E.4 & .6(b). Accordingly, all of Defendant's factual assertions are deemed admitted-and, contrary to Plaintiff's assertion, most of Defendant's assertions are material. By necessity, the Court draws the bulk of the facts, below, from Defendant's statement, as supplemented by the handful of helpful, undisputed factual assertions from Plaintiff's motion and a few gap-filling (and apparently undisputed) details drawn from prior orders.

         III. FACTS

         On April 15, 2014, Plaintiff's fraternity president called Christina Gonzalez, then “the Associate Vice Chancellor of Dean of Students, ” to convey reports that Plaintiff had engaged in sexual misconduct. (ECF No. 168 at 6, ¶ 1.) Gonzalez opened a Title IX investigation and immediately suspended Plaintiff. (ECF No. 161 at 3, ¶¶ 3, 6.)

         “[Alexandra] Tracy-Ramirez, a Title IX investigator for the University, was assigned to investigate the allegations against Plaintiff.” Doe I, 255 F.Supp.3d at 1070. Per University policy, Tracy-Ramirez would be the single investigator, who would both investigate the accusations and make conclusions based on a preponderance-of-the-evidence standard. (ECF No. 161 at 4, ¶ 9.)

         Tracy-Ramirez issued a Notice of Investigation to Plaintiff on April 21, 2014, explaining that he had been accused of “engag[ing] in non-consensual sexual contact and/or intercourse with a female student” on August 31, 2013. (ECF No. 168-1 at 2.) Soon after, Plaintiff applied to transfer to a different university (“Transfer University”). (ECF No. 168 at 6, ¶ 4.)

         On May 7, 2014, Tracy-Ramirez issued a revised Notice of Investigation to Plaintiff, providing more details, including the alleged victim's name (to whom the Court will refer as “Jane Doe 1”), the alleged circumstances (an alcohol-laden fraternity party), and a short summary of the evidence against him (reports of Jane Doe 1's level of intoxication on the night in question, reports from those who watched Plaintiff leave the party with Jane Doe 1, and reports that Plaintiff had been heard bragging about having sex with Jane Doe 1 despite her protests). (Id. at 4.)

         On June 10, 2014, Tracy-Ramirez issued a Notice of Investigation to Plaintiff with information about an alleged assault on a second female student (“Jane Doe 2”) on March 9, 2014. (Id. at 7.)

         During her investigation, Tracy-Ramirez spoke with Jane Doe 1, Jane Doe 2, seven male student witnesses who were members of Plaintiff's fraternity, and three female witnesses who were friends with either Jane Doe 1 or 2, or both. (ECF No. 168 at 7, ¶ 8.) Jane Doe 1 told Tracy-Ramirez that she had little memory of the night in question other than briefly waking up naked and not in her own bed. (Id. ¶ 9.) But she woke up in her own bed the next morning and could feel physical sensations consistent with experiencing vaginal intercourse recently. (Id.) See also Doe I, 255 F.Supp.3d at 1070. And she soon learned from a friend that Plaintiff had walked her home. Id. She also began hearing from others that they had heard Plaintiff bragging about having sex with her. Id. As for non-victim witnesses, six of them

generally confirmed one or more of the following: that Jane Doe 1 had been intoxicated on the night in question; that she had left the Fraternity party with Plaintiff; that she believed she and Plaintiff had engaged in sexual intercourse that night, but she could not remember; that Plaintiff walked her home that night; that, soon after, Plaintiff had boasted about having sex with Jane Doe 1; and that Plaintiff, many months later, recounted to others that Jane Doe 1 had been telling Plaintiff on the night in question that she did not want to have sex, but he persisted.

Id. at 1070-71. (See also ECF No. 168 at 7-8, ¶¶ 11, 13, 15, 17, 18.)

         Jane Doe 2 told Tracy-Ramirez that she was sober on the night in question and “made it very clear” to Plaintiff “that she didn't want to have sex with him.” (Id. at 8, ¶¶ 19-20.) There were no witnesses who could provide contemporaneous corroborating evidence, although Tracy-Ramirez interviewed other students to whom Jane Doe 2 had spoken about the incident. See Doe I, 255 F.Supp.3d at 1071.

         Plaintiff met with Tracy-Ramirez at least once, accompanied by an attorney. Id. at 1071-72. Through his attorney, he also communicated in writing on several occasions. Id. at 1072. These communications mostly comprised (i) direct denials of the specific accusations against him, although without providing supporting evidence or even another side of the story; and (ii) complaints about bias, a presumption of guilt, and lack of due process generally. Id. Plaintiff and his attorney were permitted to review the complete investigation file, including witness interview notes, before Tracy-Ramirez made her findings, but Plaintiff still stood on his denials and procedural complaints. Id. (See also ECF No. 168 at 9, ΒΆ 23.) Plaintiff could have offered his own version of events, explained why various witnesses should not be believed, supplied ...

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