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Messeri v. University of Colorado

United States District Court, D. Colorado

September 23, 2019

UNIVERSITY OF COLORADO, BOULDER through its Board, the Regents of the University of Colorado, a body corporate, PHILIP P. DISTEFANO, individually and in his official capacity as Chancellor of the University of Colorado, Boulder, VALERIE SIMONS, individually, REGINA TIRELLA, individually, JESSICA POLINI, individually, LAUREN HASSELBACHER, individually, CAROLE CAPSALIS, individually, JOHN THOMAS GALLOWAY, individually, and AGNIESZKA LYNCH, individually, Defendants.



         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.


         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).


         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 ...

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