United States District Court, D. Colorado
ORDER GRANTING IN PART UNIVERSITY DEFENDANTS’
MOTION TO DISMISS AND GRANTING INDIVIDUAL DEFENDANTS’
MOTION TO DISMISS
WILLIAM J. MARTINEZ, UNITED STATES DISTRICT JUDGE
Plaintiff
Girolamo Messeri was expelled from the University of Colorado
at Boulder (the “University”) in November 2016
after the University concluded that he had non-consensual
sexual contact with a woman, identified only as Jane Doe.
(ECF No. 12 ¶¶ 119, 132.) Plaintiff sues the
University and Chancellor Philip DiStefano in his official
capacity (together, “University Defendants”) as
well as eight University employees, including DiStefano, in
their individual capacities (together, “Individual
Defendants”) under various theories about how the
University Defendants or Individual Defendants violated
Plaintiff’s procedural and substantive due process
rights. (Id.) Plaintiff also alleges that the
University Defendants violated his rights under Title IX of
the Education Amendments of 1972 (“Title IX”).
Plaintiff seeks damages and injunctive relief, including a
Court order that the University remove any record of
Plaintiff’s expulsion from his education file or
transcript. (Id. at 62–64.)
Currently
before the Court are two motions to dismiss. The University
Defendants move for partial dismissal of Plaintiff’s
procedural due process claim and for dismissal of
Plaintiff’s Title IX, substantive due process, and
“stigma plus” claims for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6). (ECF No. 31.)
The Individual Defendants move to dismiss all claims against
them in their entirety, invoking qualified immunity on each
of Plaintiff’s claims against them. (ECF No. 30.) For
the reasons explained below, the University Defendants’
Partial Motion to Dismiss is granted in part, and the
Individual Defendants’ Motion to Dismiss is granted.
I.
LEGAL 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 Rule
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).
II.
BACKGROUND
This
case arises out of a report made to the University of
Plaintiff’s alleged sexual misconduct, and the
University’s handling of the investigation pursuant to
that report. The Court first reviews the relevant policies
and procedures in place at the time, and then the facts
pertinent to Plaintiff’s case as plead in his Amended
Complaint, which are taken as true for purposes of the
Motions. All paragraph references (“¶__ ”)
are to Plaintiff’s Amended Complaint
(“Complaint”). (ECF No. 12.)
A.
The University’s Applicable Sexual Misconduct Policy
and Procedure
Upon
his acceptance to the University, Plaintiff received online
access to copies of the Office of Institutional Equity and
Compliance’s (“OIEC”) Process and
Procedures 2016–2017 (“OIEC Procedures”),
[1]
which set forth the definitions and procedures for
investigating allegations of sexual misconduct during the
2016–2017 academic year. (¶ 65.) The University
has repeatedly updated OIEC guidance and procedures in an
attempt to comply with the 2011 guidance letter (“Dear
Colleague Letter”) issued by the Department of
Education, Office of Civil Rights (“OCR”).
(¶¶ 32, 66.)
The
OIEC Procedures “govern all students.” (¶
71.)[2]
They state that the University is “committed to
providing prompt, fair, impartial and equitable investigation
and resolution of any complaint that the University knows . .
. about.” (¶ 78.) They further state that
“the OIEC conducts fair and unbiased investigations and
treats all individuals who seek our assistance with respect
and dignity.” (¶ 72.) Plaintiff contends that the
University does not treat those accused of sexual misconduct
with the same respect or dignity as those who are on the
receiving end of such alleged misconduct. (Id.)
Plaintiff claims that the OIEC Procedures “repeatedly
refer to complainants as ‘victims’” and
provide links to resources geared toward victims. (¶
75.)
According
to the facts alleged in the Complaint, the OIEC uses the
following investigative model. (¶ 82.) Upon a report of
misconduct from a person (“complainant”),
[3] the
University assigns one or more investigators to gather
evidence and determine whether, under a preponderance of the
evidence standard, a student accused of sexual misconduct
(“respondent”) is responsible for violating the
University’s sexual misconduct policy. (¶¶
23–24, 85.) A respondent allegedly has no right to a
hearing or any process through which he or she may question
the complainant or other witnesses. (¶¶
82–83.) A respondent does not have access to
complainant or witness statements until the investigation is
completed and a Written Evidence Summary is provided by the
investigator. (¶ 84.)
The
investigator prepares a Final Investigation Report
(“FIR”), which is reviewed by the Standing Review
Committee for “bias and impartiality, thoroughness of
the investigation and sufficiency to support the
finding.” (¶ 86.) The Standing Review Committee
may not conduct its own investigation or hearing. A
respondent is not provided with any information about the
identity of the Standing Review Committee members.
(Id.) Plaintiff contends that the Standing Review
Committee members “lack adequate training and merely
rubber stamp the investigators’ Finding.”
(¶¶ 87.)
After a
review of the FIR by the Standing Review Committee, a
respondent is provided a Notice of Finding and the FIR.
(¶¶ 85–86, 89.) After the Notice of Finding
is issued, the matter is turned over to Defendant Valerie
Simons, OIEC Executive Director and Title IX Coordinator, to
determine the sanction. (¶¶ 89, 93.) Simons may
elect to reopen an investigation in limited circumstances.
(¶ 93.) Simons may consider the following factors in
determining a sanction: respondent’s acceptance of
responsibility; severity of the conduct and escalation during
the incident; complainant’s capacity or lack thereof;
use of force or violence; prior history of policy violations
or criminal activity; impact on the complainant; and ongoing
safety risk to the complainant or community. (¶ 91.)
Students who are expelled receive a permanent notation of
expulsion on their transcripts. (¶ 92.) There is no
right to appeal the sanction. (¶ 93.)
The
OIEC Procedures also clarify that any investigation by the
OIEC is “separate and apart from any law enforcement .
. . proceeding. . . . Investigations or inquiries conducted
by the OIEC are not postponed while . . . criminal
proceedings are pending unless otherwise determined by the
OIEC.” (¶ 73.)
Plaintiff
contends that the OIEC Procedures for sexual misconduct vary
significantly from procedures set forth in the Student Code
of Conduct, which addresses violations of campus policy other
than those involving sexual misconduct or harassment. (¶
94.) Specifically, Plaintiff notes that the Student Code of
Conduct, unlike the OIEC Procedures, (1) allows student
advisors “to make a statement and ask questions to
present relevant information to the conduct officer”;
(2) allows respondents to submit questions to be asked of
complainant and witnesses; (3) permits interviews to be
audiotaped; and (4) permits an appeal for respondents who
have been “severely sanctioned.” (Id.)
B.
Interaction Between Plaintiff and Jane Doe
On
September 10, 2016, shortly after Plaintiff began his
freshman year at the University, Plaintiff and his roommate,
referred to in the Complaint as W2, were walking around
campus when they met Jane Doe and her friend, referred to in
the Complaint as W1. (¶ 54.) Jane Doe and W1 were not
students at the University. (Id.) The group decided
to go to Plaintiff and W2’s dorm room. (¶ 55.) In
the dorm room, Plaintiff and Jane Doe began kissing, and
shortly thereafter went into the bathroom together.
(Id.) Plaintiff alleges that he asked Jane Doe is
she would perform oral sex and she agreed. (¶ 56.) He
then removed his belt, and Jane Doe began performing oral
sex. (Id.) “After a few minutes, ” Jane
Doe stopped and told Plaintiff she did not feel well and went
back into the room to be with her friend. (Id.)
Plaintiff alleges that the sexual encounter lasted between 45
seconds and one minute. (¶ 103.)
After
Plaintiff and Jane Doe exited the bathroom, they continued to
spend time together, including outside the dorm room and at a
party on the fifteenth floor in Plaintiff’s dorm.
(¶ 57.) In total, Jane Doe and W1 spent approximately
1.5 hours in Plaintiff’s dorm building. (¶ 58.)
When Jane Doe and W1 eventually left the dorm building,
“they pressed all the buttons on the elevator and spent
time laughing and posting photos of themselves on social
media as they stopped at each floor.” (Id.)
According to video surveillance footage, they also
encountered and spoke to W2 while riding the elevator.
(Id.)
C.
The University’s Investigation of the Report of Sexual
Misconduct
On
September 12, 2016, Jane Doe reported to the Colorado
University Police Department (“CUPD”) that
Plaintiff had forced her to perform oral sex on him in his
University dorm over the weekend. (¶¶ 59, 103.)
That same day, CUPD notified the University and OIEC of the
report. (¶ 60.) Also that day, Defendant Regina Tirella,
OIEC Director of Remedial and Interim Measures and Deputy
Title IX Coordinator, issued a “Residence Hall
Exclusion, Temporary Relocation and No Contact Order”
to Plaintiff. (¶ 95.) While the Residence Hall Exclusion
was in place, Plaintiff lived in a nearby hotel. (¶ 96.)
Simons
appointed Defendants Lauren Hasselbacher and Jessica Polini
(the “investigators”) to investigate whether the
alleged conduct violated the University’s sexual
misconduct policy. (¶ 99.)
The
investigators interviewed W1. W1 told the investigators that
Plaintiff attempted to get Jane Doe to drink more, that Jane
Doe was not flirting with Plaintiff, and that Plaintiff
kissed Jane Doe without her permission. (¶ 114.) W1 had
previously told CUPD that Jane Doe and Plaintiff were
“making out” in the dorm room before they went to
the bathroom, that Jane Doe did not look disheveled when she
emerged from the bathroom, and that she did not hear any
noise coming from the bathroom. (¶ 113.) Plaintiff
contends that W1’s statements to investigators were
inconsistent with her statements to CUPD, and that OIEC
investigators did not question her credibility. (¶ 114.)
Plaintiff also alleges that the University withheld
W1’s name from Plaintiff during the investigation.
(¶ 113 n.9.)
The
investigators also interviewed W2. W2 told CUPD that he saw
Plaintiff and Jane Doe “making out in a mutual
way” and that Jane Doe was flirting with Plaintiff.
(¶ 115.) W2 also reportedly stated (whether to CUPD or
the investigators, it is unclear) that he never heard
Plaintiff encouraging Jane Doe to drink, that Jane Doe and
Plaintiff did not seem upset when they emerged from the
bathroom, and that the foursome continued to socialize in the
dorm room after Plaintiff and Jane Doe returned from the
bathroom. (Id.) W2 also reported (again, it is
unclear whether to CUPD or the investigators) that Jane Doe
became upset with Plaintiff when they took an elevator to a
party on a different floor in the dorm and Plaintiff got off
the elevator on a different floor with another female.
(¶ 116.) Plaintiff states that W2 “confirmed that
Jane Doe ‘didn’t take too kindly’ to
Plaintiff leaving the elevator with another woman.”
(Id.) Plaintiff alleges that W2 made consistent
statements to CUPD, the investigators, and Plaintiff’s
private investigator, but Hasselbacher and Polini nonetheless
found W2 to lack credibility. (Id.) Plaintiff
contends that there was “no rational basis for the
investigators to discredit W2’s account and for them to
rely on [W1’s] changing story.” (Id.)
There
is no suggestion in the facts alleged that the investigators
interviewed Plaintiff to get his story or determine his
credibility.
Hasselbacher
and Polini never personally interviewed Jane Doe, nor is
there any indication that Jane Doe refused to speak to the
investigators. (¶ 104; ECF No. 29 at 12, ¶ 104.)
Instead, they relied on three CUPD interviews with Jane Doe.
(¶¶ 103, 105.) Jane Doe admitted to staying with
Plaintiff, W1, and W2 after the alleged assault, going
outside to smoke marijuana with them, and returning to the
dormitory building to attend a party on the fifteenth floor.
(¶ 106.) Jane Doe allegedly told W1 that Plaintiff
assaulted her when they were outside smoking. (Id.)
Plaintiff
alleges that Jane Doe’s recollection of the evening was
not consistent across the three CUPD interviews.
(¶¶ 105, 109.) For example, Plaintiff contends that
Jane Doe first told CUPD that she was “kind of drunk,
” later that she had “three quarters of a bottle
of wine and smoked marijuana, ” and finally that she
was a “‘four or five’ on a scale of one to
ten in terms of intoxication.” (¶ 105.) It is not
clear to the Court that these are entirely inconsistent
statements. When CUPD questioned Jane Doe about the elevator
ride when she finally left the dormitory, she first stated
that she and W1 “were high and did not know where they
were going” but later stated that “she and W1
were taking a ‘moment of reflection’ in the
elevator and ‘processing’ what happened”
and that “they were looking for the lobby.”
(¶ 109.) There is no suggestion in the Complaint that
Jane Doe’s recollection of the sexual encounter with
Plaintiff varied across her three interviews. Plaintiff
contends that Hasselbacher and Polini “simply assumed
that Jane Doe was telling the truth, ” regardless of
the inconsistencies in her recounting of events, and thus
improperly shifted the burden to Plaintiff to prove his
innocence and misapplied the preponderance of the evidence
standard for OIEC investigations. (¶¶
101–02.)
Based
on the CUPD interviews alone, Hasselbacher and Polini
determined that Jane Doe provided “materially
consistent information to the CUPD.” (¶ 110.)
Plaintiff alleges that the investigators failed to review
Jane Doe or W1’s social media posts from the night in
question. (¶ 111.) It is unclear from the Complaint
whether the investigators reviewed video surveillance footage
of the dormitory from that night.
At some
point during the investigation, Polini directed an individual
at the Office of Victim Assistance to inform Jane Doe that
she was not required to speak to Plaintiff’s private
investigator and that Plaintiff could be in violation of the
no contact order if the investigator harassed Jane Doe.
(¶ 112.)
On
November 8, 2016, Hasselbacher and Polini issued the Notice
of Finding (the “Finding”) that notified
Plaintiff that he was found responsible, under a
preponderance of the evidence standard, for “Sexual
Assault-Non-Consensual Sexual Intercourse.” (¶
119.)
The
Finding stated that the “findings have been reviewed
and approved by a review committee.” (¶ 120.)
Indeed, the Standing Review Committee, comprising Defendants
Carole Capsalis, John Galloway, and Agnieszka Lynch, had
received the FIR from the investigators on November 8, and
approved it the same day. (¶¶ 121–22.) At
some point prior to issuing the FIR, University Associate
Counsel Michelle Krech reviewed the report. (¶ 123.)
During
the course of the investigation, Plaintiff did not have a
hearing and alleges that he had no right to submit written
questions to the investigators. (¶ 117.) Plaintiff had
no right to appeal the Finding. (¶ 124.)
After
the Finding, Simons was solely responsible for determining
the sanction against Plaintiff. (¶ 126.) The OIEC
Procedures allowed Plaintiff an opportunity to present
mitigating evidence prior to Simons issuing any sanction.
(¶ 125.) Thus, on November 15, 2016, Plaintiff, his
father, his attorney, and the Italian Consul in Denver met
with Simons “to present mitigating factors with respect
to any sanction that Simons would impose.” (¶
129.) Plaintiff alleges that Simons pressured Plaintiff to
admit the allegations against him despite her knowledge of
the ongoing criminal investigation. (¶ 130.) Plaintiff
disputed Jane Doe’s claim and the outcome of the
investigation, and denied wrongdoing. (Id.) Thus, he
“made no such admission in order to get a lesser
sanction from Simons.” (Id.)
On
November 23, 2016, the day before Thanksgiving, Simons issued
a Notice of Sanction that informed Plaintiff that, based on
her review of the investigators’ report and all
available information, Plaintiff should be “immediately
expelled, excluded from all University of Colorado campuses,
and that his housing contract was terminated.” (¶
132.) Plaintiff alleges that Simons had previously
represented to Plaintiff that he would be permitted to finish
the semester. (Id.) Plaintiff also claims that
Simons “issued the sanction when she knew that
Plaintiff was away from campus for the upcoming holiday and
had left his belongings in his dorm room.”
(Id.)
The
Notice of Sanction did not notify Plaintiff that Simons could
reopen the case if there was new evidence, if OIEC procedures
were not followed, or additional circumstances warranted
reopening. (¶ 133.) Plaintiff made no further
submissions in support of his case. (Id.)
Plaintiff
alleges on information and belief that the University
administrators, including Simons, were motivated to build a
case against Plaintiff and push CUPD and the Boulder County
District Attorney’s Office to prosecute because Jane
Doe’s father threatened to sue the University.
(¶¶ 61, 184.) He also claims that the University
“acted in concert with CUPD to build a case against
Plaintiff.” (¶ 61.)
Eventually,
after the University had expelled Plaintiff, prosecutors
filed sexual assault charges against Plaintiff and a warrant
issued for his arrest. (¶¶ 9, 63.) By that point,
Plaintiff had returned home to Italy. (¶ 63.) In
November 2017, Plaintiff was arrested during a routine
traffic stop in Utah. (¶ 64.) He pled not guilty, and
spent 33 days in jail. (Id.) The Boulder County
District Attorney’s Office later dismissed the charges
against him. (Id.)
Plaintiff
contends that his expulsion, and resulting permanent notation
on his transcript, was severe and unwarranted, and the direct
and proximate cause of damages to Plaintiff. (¶¶
135–36.) He also pleads on information and belief that
the University “has not treated females accused of
sexual assault in this way, nor has the University issued
such harsh sanctions against female accused.” (¶
62.)
III.
ANALYSIS
A.
University Defendants’ Partial Motion to Dismiss (ECF
No. 31)
1.
Procedural Due Process (Claim 1)
The
Fourteenth Amendment’s Due Process Clause states,
“No state shall . . . deprive any person of life,
liberty, or property without due process of law.” U.S.
Const. amend. XIV, § 1. A court must “examine
procedural due process questions in two steps: the first asks
whether there exists a liberty or property interest which has
been interfered with by the State; the second examines
whether the procedures attendant upon that deprivation were
constitutionally sufficient.” Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989) (internal
citation omitted); see also Zwygart v. Bd. of Cnty.
Comm’rs, 483 F.3d 1086, 1093 (10th Cir. 2007).
“[D]ue
process is flexible and calls for such procedural protections
as the particular situation demands.” Mathews v.
Eldridge, 424 U.S. 319, 334 (1976) (alterations in
original). To discern the procedural protections demanded by
any particular situation, the Court must consider the
following three factors:
• The interests of the individual in retaining their
property and the injury threatened by the official action;
• The risk of error through the procedures used and
probable value, if any, of additional or substitute
procedural safeguards; and
• The costs and administrative burden of the additional
process, and the interests of the government in efficient
adjudication.
Id. at 335. Because the Court is considering a Rule
12(b)(6) motion, the Court need only evaluate whether
Plaintiff has a plausible claim that these three factors will
weigh in his favor. See, e.g., Doe v.
Alger, 175 F.Supp. 3d 646');">175 F.Supp. 3d 646, 656 (W.D. Va. 2016)
(“Alger”) (evaluating “whether the
plaintiff has sufficiently alleged that the process he
received was constitutionally inadequate”).
The
University Defendants do not challenge Plaintiff’s
property or liberty interest at the foundation of his due
process claim, but instead move to dismiss three of sixteen
arguments regarding the allegedly inadequate process
Plaintiff received. (See ¶ 165(i)–
(xvi).) The Court will address each of the three in turn.
a.
Residence Hall Exclusion
Plaintiff
concedes that exclusion from the residence hall does not
support a procedural due process violation. (ECF No. 39 at 19
n.40.) Accordingly, the Court dismisses this portion of
Plaintiff’s procedural due process claim with
prejudice.
b.
University Counsel’s Review of the FIR
Plaintiff
contends that the OIEC Procedures did not put Plaintiff on
notice that the University’s counsel would review any
FIR. (¶ 123.) In addition, Plaintiff suggests that
review of the FIR by Krech prior to issuance of the Finding
“plausibly affected the fairness and impartiality of
the Title IX investigation, and Finding, by injecting legal
analysis into the process that was ...