United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT'S MOTION TO DISMISS, PLAINTIFF'S
MOTION FOR PARTIAL SUMMARY JUDGMENT, AND PLAINTIFF'S
MOTION FOR INTERIM RELIEF, AND DENYING PLAINTIFF'S MOTION
FOR INTERIM ATTORNEY'S FEES
DAVID
M. LAWSON UNITED STATES DISTRICT JUDGE
This
case returns to this Court after remand from the court of
appeals, reversing a dismissal based on the defendants'
earlier-filed motion to dismiss. Plaintiff John Doe was
forced out of the University of Michigan business school in
the second semester of his senior year when he was found to
have violated the University's sexual misconduct policy.
After Doe's one-night stand with a female freshman
student, who filed a complaint with the University's
Office of Student Conflict Resolution (OSCR), an appeal board
concluded that Doe had sexual relations with the freshman
when Doe should have known that she was too drunk to be able
to give consent. Doe protested, filing a complaint with this
Court alleging, among other things, that his due process
rights were violated because he was not given the chance to
cross-examine his accuser. This Court dismissed the case, not
because it found that cross-examination was a dispensable
procedural nicety, but because it would not have mattered
when Doe had admitted that the woman's version of the
events of that fateful evening was correct.
The
court of appeals disagreed. It construed the pleadings and
the administrative record in the light most favorable to Doe
and concluded that the plausibility of the due process claim
was not sufficiently rebutted by the purported confession.
Doe v. Baum, 903 F.3d 575, 584 (6th Cir. 2018). It
also found that one aspect of Doe's Title IX claim should
advance. The court remanded the case for further proceedings.
After
remand, Doe moved for interim relief, partial summary
judgment on his due process claim, and interim attorney's
fees. The defendants filed another motion to dismiss. The
defendants argue that the second amended complaint does not
show that the individual defendants were personally involved
in any due process deprivation, and in any event, they should
not be subjected to damages on the due process claim because
of qualified immunity. They do not question the viability of
the Title IX claim, but they contend that punitive damages
are not available.
Doe
believes that the court of appeals decision gave him a
complete victory on the due process claim, so he should have
judgment as a matter of law on liability. He wants an order
requiring the University to vacate the finding that he
violated the sexual misconduct policy and the resulting
sanctions, to expunge the documents concerning the
investigation and findings, to enjoin the defendants from
disclosing information about the whole episode to third
parties and from commencing another appeal hearing, to award
him the degree he was on his way to earning, and to repay him
the tuition he spent finishing his degree at another
university.
The
second amended complaint contains sufficient facts to
establish the personal involvement of some but not all the
defendants. Qualified immunity protects them, though, from a
damage award (but not equitable relief) on the due process
claim. Doe is not yet entitled to a judgment on that claim
because the element of prejudice remains in play, although
the other elements of the claim are established as a matter
of law. And because the results of the constitutionally
defective appeal procedure must be vacated, Doe is entitled
to some, but not all, of the interim equitable relief he
seeks. The motions will be granted in part and denied in
part.
I.
Background
The
facts of the case were covered at length in the Court's
prior opinions on the defendant's motion to dismiss and
the plaintiff's post-dismissal motion for relief, and in
the opinion by the Sixth Circuit reversing the dismissal. The
amended complaint raised claims that (1) the applicable
definition of “incapacitated” in the
University's sexual misconduct policy (which since has
been revised) is “void for vagueness” (Count I);
(2) the appeal process deprived Doe of his right to
procedural due process because he had no meaningful
opportunity for a fair hearing and review of his case by the
appeal panel (Count II); (3) the University violated his
rights under the First Amendment by denying him the
opportunity to set forth his “objections” in his
response to the penalty proposal (Count III); (4) the appeal
panel discriminated against him on the basis of his sex,
contrary to Title IX, by refusing fully and fairly to
consider his side of the story (Count IV); and (5) the
University's policy regarding sexual misconduct appeals
had a disparate impact on Doe based on his sex, because
students accused of sexual misconduct are not allowed to have
an oral hearing before the appeal board, to pose questions to
the complainant on the record, or to have certain other
privileges inherent in a live hearing (Count V). The
complaint also included trailing claims for gender
discrimination under Michigan's Elliot-Larsen Civil
Rights Act (Counts VI and VII), on the same premises advanced
in Counts IV and V. The Court dismissed all counts on the
defendants' motion. The court of appeals reversed the
dismissal of Count II and Count IV. After remand, the
plaintiff filed a second amended complaint alleging that the
appeal board proceeding denied him due process of law by
depriving him of his right to cross-examine his accuser
(Count I), and the appeal board discriminated against him on
the basis of sex in violation of title IX when it reached an
erroneous outcome based on his gender (Count II).
The
court of appeals held that the plaintiff's procedural due
process claim should not have been dismissed at the pleading
stage “[b]ecause Doe never received an opportunity to
cross-examine Roe or her witnesses - not before the
investigator, and not before the [University's Appeal]
Board, ” and, therefore, “there is a significant
risk that the university erroneously deprived Doe of his
protected interests.” Doe, 903 F.3d at 582.
The panel also flatly rejected three out of four of the
University's arguments in defense of the propriety of its
disciplinary appeal process, which were that: (1) the purpose
of cross-examination was fulfilled when the plaintiff was
permitted to review the complainant's statement and
submit a response identifying inconsistencies in the
complainant's presentation for the investigator; (2)
cross-examination was not required because the
university's decision did not depend entirely on a
credibility contest between the plaintiff and the
complainant; and (3) the plaintiff was not prejudiced by the
denial of an opportunity to cross-examine, because, after the
disciplinary proceedings had concluded, the complainant gave
a deposition in her civil lawsuit against the plaintiff, and,
according to the University, her deposition testimony was
“consistent with what she told the investigator.”
Id. at 582-85. The University had raised all those
same defenses before this Court, but prospectively those
issues now are dead letters.
The
panel leveled a more reserved critique of the defendants'
argument that the failure to allow cross-examination did not
rise to the level of a due process violation because the
plaintiff admitted the conduct for which he was disciplined,
concluding that Doe's admission was equivocal:
Because the district court made [the appeal board's]
report part of the pleadings, we must read it in the light
most favorable to Doe. When we do, we cannot conclude that
Doe admitted to any of the critical facts in his case - i.e.,
that Roe was too drunk to consent to sex, and that he knew or
should have known as much. For one, we would have to ignore
Doe's claim that the sex was “consensual.”
And for another, because Doe did not mention anything about
Roe's level of intoxication in his own account of the
night's events, his concession that Roe was correct and
that he “got it all wrong” appears to relate only
to the points on which the detective said their two accounts
actually diverged - the order of the sexual act. This alleged
confession thus does not sufficiently rebut the plausibility
of Doe's claim.
Id. at 584 (citations omitted).
After
the case was remanded, the Court held a status conference
with counsel. Doe's attorney took the position that the
merits of the due process claim were resolved by the decision
of the court of appeals, and that equity demanded that the
plaintiff receive prompt injunctive relief on that claim,
including expungement of all disciplinary consequences
precipitated by the adverse appeal of the OIE
investigator's findings, and an award of the degree for
which the plaintiff was lacking only 13.5 credits when he was
forced to withdraw. The University insisted that it stands
ready to provide a “new hearing” on the appeal,
in which it is prepared to offer the plaintiff the
opportunity for live cross-examination that he desires. The
plaintiff also insisted that, whatever is the resolution of
the due process claim, discovery immediately should commence
on the Title IX claim, which the Sixth Circuit also allowed
to proceed. Because the parties appeared unlikely to reach an
agreement on what should be the proper course forward, the
Court directed the plaintiff to file a motion for imposition
of a remedy on the due process claim. The plaintiff
subsequently filed his motion for relief, which the Court
views now as a motion for interim injunctive relief. The
Court heard oral argument on those motions on February 14,
2019. At the direction of the Court, the plaintiff also
subsequently filed a second amended complaint, referenced
above, realigning the claims and parties to account for the
previous undisturbed rulings of the Court and the impact of
the Sixth Circuit's ruling on the remand.
After
the hearing on those motions, the defendants filed a motion
under Rule 12(b)(6) to dismiss Count I of the Second Amended
Complaint for failure to state a claim against Baum, Pritzel,
Bentley, Bazzy, Wessel, Walesby, Frumkin, and Sellers and the
claims for monetary relief against all the individual
defendants, and to dismiss the claims for punitive and
exemplary damages on Count II. They do not raise any
challenge to the Count I claims for injunctive and
declaratory relief against individual defendant E. Royster
Harper, or to the claims for injunctive relief and
compensatory damages against the University under Title IX
(Count II).
For his
part, the plaintiff responded with a motion for partial
summary judgment on Count I, asking the Court to return him
to the status quo before the defective appeal board hearing.
He also asks the Court to enter a permanent injunction
vacating the findings against him that were made by the
appeal board and expunging the sanctions imposed upon him as
a result of those findings. Doe also filed a motion for an
interim award of attorney fees under 42 U.S.C. § 1988(b)
of $326, 824.50, plus costs of $9, 986.23.
II.
Motion to Dismiss
“To
survive a motion to dismiss, a complaint must contain
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 547
(2007)). A “claim is facially plausible when a
plaintiff ‘pleads factual content that allows the court
to draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Matthew N.
Fulton, DDS, P.C. v. Enclarity, Inc., 907 F.3d 948,
951-52 (6th Cir. 2018) (quoting Iqbal, 556 U.S. at
678). The Court “must ‘construe the complaint in
the light most favorable to the plaintiff[] [and] accept all
well-pleaded factual allegations as true.'”
Id. at 951 (quoting Hill v. Snyder, 878
F.3d 193, 203 (6th Cir. 2017)).
When
deciding a motion under Rule 12(b)(6), the Court looks only
to the pleadings. Jones v. City of Cincinnati, 521
F.3d 555, 562 (6th Cir. 2008). But the Court also may
consider the documents attached to them, Commercial Money
Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327, 335
(6th Cir. 2007) (citing Fed.R.Civ.P. 10(c)), documents
referenced in the pleadings that are “integral to the
claims, ” id. at 335-36, documents that are
not mentioned specifically but which govern the
plaintiff's rights and are necessarily incorporated by
reference, Weiner v. Klais & Co., Inc., 108 F.3d
86, 89 (6th Cir. 1997), abrogated on other grounds by
Swierkiewicz v. Sorema, N.A., 534 U.S. 506 (2002), and
matters of public record, Northville Downs v.
Granholm, 622 F.3d 579, 586 (6th Cir. 2010); see
also Cates v. Crystal Clear Tech., LLC, 874 F.3d 530,
536 (6th Cir. 2017) (instructing that “‘[w]hen a
written instrument contradicts allegations in the complaint
to which it is attached, the exhibit trumps the
allegations.'”) (quoting Williams v.
CitiMortgage, Inc., 498 Fed.Appx. 532, 536 (6th Cir.
2012)). However, beyond that, assessment of the facial
sufficiency of the complaint ordinarily must be undertaken
without resort to matters outside the pleadings. Wysocki
v. Int'l Bus. Mach. Corp., 607 F.3d 1102, 1104 (6th
Cir. 2010).
A.
Count I (Due Process)
Doe
makes his due process claim in Count I via 42 U.S.C. §
1983, which imposes liability on state actors who deprive a
person of federal constitutional rights. Baynes v.
Cleland, 799 F.3d 600, 607 (6th Cir. 2015) (citing
Brosseau v. Haugen, 543 U.S. 194, 197-98 (2004)).
The plaintiff must establish the liability of each individual
defendant by that person's own conduct. Ashcroft v.
Iqbal, 556 U.S. 662, 676 (2009) (“Because
vicarious liability is inapplicable to Bivens and § 1983
suits, a plaintiff must plead that each Government-official
defendant, through the official's own individual actions,
has violated the Constitution.”).
The
constitutional right Doe invokes is the protection conferred
by the Fourteenth Amendment not to be deprived of property
without due process of law. To plead a procedural due process
claim, his complaint must contain facts establishing three
elements: “(1) that [he has] a property interest
protected by the Due Process Clause; (2) that [he was]
deprived of this property interest; and (3) that the state
did not afford [him] adequate pre-deprivation procedural
rights.” Cahoo v. SAS Analytics Inc., 912 F.3d
887, 900 (6th Cir. 2019). In addition, where the allegation
is that the plaintiff was denied a fair hearing, the
“procedural due process claim requires a showing of
prejudice.” Mendoza-Garcia v. Barr, 918 F.3d
498, 508 (6th Cir. 2019) (citing Graham v. Mukasey,
519 F.3d 546, 549 (6th Cir. 2008) (“In order to prevail
on a procedural due process challenge, Graham must also show
prejudice. Indeed, we need not address the merits of a claim
if there is no demonstration of prejudice.”); Al
Khouri v. Ashcroft, 362 F.3d 461, 466-67 (8th Cir.
2004); Agyeman v. INS, 296 F.3d 871, 884 (9th Cir.
2002)). “To prove prejudice, he must show that his
‘claims could have supported a different
outcome.'” Ibid. (quoting Sako v.
Gonzales, 434 F.3d 857, 864 (6th Cir. 2006)). In order
words, he must establish that the information or defense that
he wanted to present could have changed the outcome of the
proceeding, if he had been afforded the full benefit of the
process to which he was entitled. Ibid. The Sixth
Circuit has observed that the language used to describe the
prejudice standard has varied somewhat in its past decisions,
but in close cases the more permissive formulation first
articulated in Sako controls.
Mendoza-Garcia, 918 F.3d at 508 n.1.
All
those elements can be found in the second amended complaint
in some form or another. But the plaintiff must establish the
liability of each individual defendant by that person's
own conduct. Ashcroft v. Iqbal, 556 U.S. 662, 676
(2009) (“Because vicarious liability is inapplicable to
Bivens and § 1983 suits, a plaintiff must plead that
each Government-official defendant, through the
official's own individual actions, has violated the
Constitution.”).
1.
Defendant Walesby
The
plaintiff alleges nothing more about defendant Walesby beyond
that he “reviewed and approved the [OIE
Investigator's] Report.” But the OIE investigator
concluded, and stated in her report, that there was
insufficient evidence to find that Doe violated the sexual
misconduct policy. In his original complaint and briefing in
the earlier proceedings before this Court, Doe repeatedly
lauded the fairness of the OIE investigator and the propriety
of her finding of no responsibility. He never has alleged, or
even suggested, that Walesby personally was involved in any
way in the defective appeal process. The Court will dismiss
the secomd amended complaint against defendant Walesby.
2.
Defendants Bazzy and Wessel
The
lone allegations against defendants Bazzy and Wessel are that
they “approved and overs[aw]” the
“resolution process” that ensued after the Appeal
Board rendered its finding that the plaintiff violated the
sexual misconduct policy. The “resolution
process” was the offer to the plaintiff to either
consent to voluntarily withdrawing from the University or
face the inevitable consequence of expulsion. However, the
plaintiff has not alleged any facts to suggest that Bazzy or
Wessel had any personal involvement in the defective appeal
procedure itself.
Doe's
attempts to frame any portion of his procedural due process
claims as embracing the “resolution” process
after the finding of discipline cannot succeed, because the
sole ground for that claim remanded to this Court was the
denial of the right to a live hearing with cross-examination
during the appeal process. That also was the only ground on
which Doe appealed the denial of his due process claims. He
has waived the right to pursue the claim on any basis other
than the denial of a live hearing with cross-examination.
Moreover, as discussed more fully below, this Court is bound
by the doctrine of the law of the case to address the
surviving claim solely as it was framed in the remand.
Doe
also attempted to plead other various claims relating to the
resolution process such as a First Amendment claim based on
the demand that he withdraw a statement of objections to the
disciplinary process if he wanted to accept the alternative
of voluntary withdrawal. But, again, all those claims were
dismissed on the merits, and the plaintiff did not pursue any
of them on appeal. There are, therefore, no live claims in
the case involving any conduct for which defendants Bazzy and
Wessel personally were responsible.
Bazzy
and Wessel cannot be found liable for
“overseeing” the disciplinary process without
attempting to rectify any constitutional injury. It is
axiomatic that neither they (nor any of the other individual
defendants) may be held liable based on either a merely
supervisory role, Ashcroft, 556 U.S. at 676, or
inaction in the face of a known constitutional violation,
absent some affirmative endorsement or encouragement or
direct participation in the misconduct, Hill v.
Marshall, 962 F.2d 1209, 1213 (6th Cir. 1992)
(“[T]he mere failure to act, even in the face of a
statistical pattern of misconduct, is an insufficient basis
for holding a supervisor liable for the constitutional
violations of her employees.”). It is well established
that mere knowledge and failure to act do not suffice to
establish the liability of a party under 42 U.S.C. §
1983. Rather, the plaintiff must show that a defendant
“encouraged the specific incident of misconduct or in
some other way directly participated in it.”
Phillips v. Roane County, 534 F.3d 531, 543 (6th
Cir. 2008). It is not enough to show merely that a defendant
knew of unconstitutional conduct and failed to act.
Gregory v. City of Louisville, 444 F.3d 725, 751
(6th Cir. 2006). Rather, the plaintiff must ...