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Doe v. Baum

United States District Court, E.D. Michigan, Southern Division

October 3, 2017

JOHN DOE, Plaintiff,
v.
DAVID H. BAUM, SUSAN PRITZEL, TABITHA BENTLEY, E. ROYSTER HARPER, NADIA BAZZY, ERIK WESSEL, UNIVERSITY OF MICHIGAN, and BOARD OF REGENTS OF THE UNIVERSITY OF MICHIGAN, Defendants.

          CORRECTED OPINION AND ORDER GRANTING MISCELLANEOUS RELIEF AND DENYING MOTION TO ALTER OR AMEND THE JUDGMENT AND FOR LEAVE TO FILE AMENDED COMPLAINT

          DAVID M. LAWSON, UNITED STATES DISTRICT JUDGE.

         The Court issues this corrected opinion nunc pro tunc to correct certain non-substantive textual errors that appeared in the original.

         While in his junior year at the University of Michigan, plaintiff John Doe had a one-night stand with an intoxicated freshman co-ed in his fraternity house bedroom. After having sex, Doe left the room, never to be seen by her again that night, while the co-ed vomited into a trash can next to the bed. After the co-ed filed a complaint with the University, an appeal board assembled by the University's Office of Student Conflict Resolution (OSCR) determined that Doe had sexual relations with the freshman when Doe should have known that she was too drunk to be able to give consent. For violating the University's sexual misconduct policy, Doe was required to withdraw. He filed a complaint in this Court (later amended), alleging that he was treated unfairly. In a 63-page opinion, the Court dismissed Doe's several claims based on the Due Process Clause, the First Amendment, Title IX of the Education Amendments of 1972, and state law.

         Now before the Court is Doe's motion to reopen the case, to alter or amend the judgment, and for leave to file another amended complaint under Federal Rules of Civil Procedure 59(e) and 15, or, in the alternative, for relief from judgment under Rule 60(b)(2). He argues that he is entitled to relief from the Court's judgment dismissing his amended complaint based on “newly discovered evidence” disclosed during the course of discovery in a related state court civil lawsuit where the complainant sued the plaintiff for damages arising from the alleged sexual misconduct that precipitated his expulsion. Doe seeks to revive and amend his due process claims, based on evidence that he asserts now proves the following: (1) the complainant was not “incapacitated” at the time of the alleged sexual assault; (2) proof that the complainant was not incapacitated was withheld from plaintiff Doe during the sexual assault investigation and appeals process; (3) the plaintiff suffered a denial of due process when he was not allowed to discover that information or to cross-examine the complainant at a live hearing before the appeal panel; and (4) additional process in the form of complete discovery and a live hearing would have allowed the plaintiff effectively to foreclose his unlawful expulsion. He also asks the Court to enter judgment as a matter of law in his favor, ordering him to be reinstated to the University, and ordering the University to modify its student discipline policy.

         The Court heard oral argument on June 8, 2017. Thereafter, the plaintiff also filed supplements to his motion, additional motions to expand the record, and two notices of supplemental authority.

         Because none of the “new evidence” to which the plaintiff alludes has any material impact on, and none of it calls into question, either the Court's conclusion that the University's handling of his disciplinary case was consistent with the Due Process clause, or the conclusion by the appeal panel that there was sufficient information to suggest that the complainant was “incapacitated” at the time of the sexual encounter, and that the plaintiff should have known so, the Court will deny the motion to alter or amend the judgment and reopen the case. The motions for miscellaneous relief will be granted in part.

         I.

         The extensive factual record concerning the sexual encounter was recited at length in the Court's opinion on the motion to dismiss. The “newly discovered evidence” consists of the following.

         First, the plaintiff insists that the complainant admitted at her deposition that she “has never been ‘incapacitated' per her definition . . . including during the events at issue here.” Citing Complainant's dep. at 101 (Pg ID 3182). The plaintiff asserts that this rebuts all of the complainant's prior statements that she was “incapacitated” during the sexual encounter.

         Second, the plaintiff asserts that during the complainant's deposition she admitted that she was not “incapacitated” (1) when she arrived at the plaintiff's fraternity house around 12:20 a.m.; (2) while she was downstairs talking to the plaintiff and his friend, before the first time she went upstairs to the plaintiff's room; (3) while she was in the plaintiff's room the first time, during the five-minute excursion upstairs when the plaintiff poured “shots” for the complainant and her friend; (4) initially, when she went up to the plaintiff's room the second time, including when she kissed the plaintiff while standing inside the room; (5) after the sexual encounter, when “Witness 1” and “Witness 2” were in the room, and the complainant made “fake vomiting noises” to get their attention; and (6) after leaving the fraternity house and returning to her dormitory with Witness 2. Citing Complainant's dep. at 48, 60, 69, 106, 132, 163-66.

         Third, the plaintiff contends that the complainant's medical records from the University Health Center indicate that she was “not intoxicated” when she was examined there at 5:00 a.m. The plaintiff asserts that this rebuts the complainant's estimate that she had a blood-alcohol content (BAC) of 0.235 during the sexual encounter, which she derived by using an online calculator, because BAC degrades at a rate of 0.015 per hour, and the complainant therefore would have had a BAC of around 0.20 three hours later, when examined at the hospital, which would have left her still “intoxicated” at that time.

         Fourth, the plaintiff contends that documents from the University's Office of Institutional Equity (OIE) file show that the complainant submitted “multiple rounds of edits” of her statement to the OIE investigator, before the investigator completed her report, that the “edits” added “hyperbolic language” that was relied upon by the appeal panel and the Court, and that those “iterations” of the complainant's statement were not provided to the plaintiff during the investigation.

         Fifth, the plaintiff asserts that an email included in the OIE file reveals that the names of the appeal panel members were provided to the complainant on May 3, 2016, weeks before the appeal panel issued its written decision, but they were not disclosed to the plaintiff.

         Sixth, the plaintiff contends that the complainant admitted at her deposition that when the plaintiff stated to a police detective, “She's right and I am wrong, ” he meant merely that he was mistaken as to certain immaterial explicit details of the sexual encounter, such as “whether [they] had vaginal sex before oral sex, whether the complainant said yes to vaginal sex, and whether she got underneath the covers, ” and that the complainant conceded that the plaintiff “did not admit that his recitation of the entire night was wrong and hers was right.”

         In a supplement to his motion, the plaintiff also points to a University of Michigan Police Department (UMPD) incident report that was disclosed during discovery in the ensuing civil case, which, he contends, memorializes statements made by the complainant to a UMPD officer that “contradict” her later statements made to the OIE investigator, and that are inconsistent with her description of the encounter as recited by the appeal panel and the Court. In particular, the plaintiff points to the following excerpt of the report:

Per Sgt Harding, [Complainant] stated that [Complainant] and [Complainant's] friend [REDACTED] went to [REDACTED] for a party. They were drinking and the male suspect invited them up to his room. They then left his room to dance downstairs. He then persuaded [Complainant] to go back up to his room where he forced [Complainant] down, put a condom on, and had sex with [Complainant]. [Complainant] then passed out due to being highly intoxicated. [REDACTED] of the suspect brought a girl up to their room, she saw [Complainant] and said they needed to help [Complainant]. She woke [Complainant] up, got [Complainant] dressed and took [Complainant] downstairs. She then found [REDACTED] and [REDACTED] and [Complainant] took an Uber back to [REDACTED].

         The plaintiff asserts that this report was contained in the OIE file but never was disclosed to him during the investigation or appeal.

         After the complainant sued plaintiff Doe, she gave a deposition in the civil case. In response to almost all of the questions about how the encounter was initiated, how the plaintiff and complainant got undressed, and how they had sex during the encounter, the complainant responded, “I don't know” or “I don't remember.” The complainant testified that plaintiff Doe's statements about when she performed oral sex were “incorrect” because he described it happening before intercourse, but it happened after. The complainant also testified that the plaintiff was mistaken when he stated that she got on top of him right away (she said she was on top “[e]ventually, but not right away”), and that it was “incorrect” that the plaintiff and complainant got “under the covers” when Witness 2 entered the room the first time.

         During a lengthy cross-examination, the complainant repeatedly was pressed by plaintiff's counsel about what she thought the plaintiff had meant when he said he was “wrong” about the sexual encounter and the complainant was “right.” In the most pointed exchange, the complainant testified as follows:

Q. Now let's go back down to what the respondent is saying here. [Detective] Dortch - still on the top paragraph - “Dortch told Respondent it is his belief the way that described the sexual encounter is probably what happened. Respondent advised the way [the complainant] described it is correct; that he got it wrong. “‘She's right and I am wrong.'” So, do you see what he's referring to there? What he's wrong about is whether he had vaginal sex with you before he had oral sex with you, and whether you said yes to oral sex or whether you said yes to vaginal sex, whether you got underneath the covers? Do you see that, that that's what he -
A. Yes. And the point is he was wrong about me consenting to vaginal sex.
Q. So, you're saying he was wrong - got it all wrong when he said you consented to vaginal sex? Instead, he should have said you consented to ...

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