Doe v. Baum

          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 ...