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Doe v. Purdue University

United States District Court, N.D. Indiana, Hammond Division

November 15, 2017

JOHN DOE, Plaintiff,
v.
PURDUE UNIVERSITY, PURDUE UNIVERSITY BOARD OF TRUSTEES, MITCHELL ELIAS DANIELS, JR., ALYSA CHRISTMAS ROLLOCK, KATHERINE SERMERSHEIM, ERIN OLIVER, and JACOB AMBERGER, Defendants.

          OPINION AND ORDER

          PAUL R. CHERRY MAGISTRATE JUDGE

         This matter is before the Court on Defendants' Motion to Dismiss Plaintiff's Complaint [DE 18], filed by Defendants Purdue University, Purdue University Board of Trustees, Mitchell Elias Daniels, Jr., Alysa Christmas Rollock, Katherine Sermersheim, Erin Oliver, and Jacob Amberger on March 31, 2017. Plaintiff John Doe filed a Memorandum of Law in Opposition on June 9, 2017, and Defendants filed a Reply on June 23, 2017. On September 15, 2017, Plaintiff filed a Notice of Supplemental Authority.

         The parties filed forms of consent to have this case assigned to a United States Magistrate Judge to conduct all further proceedings and to order the entry of a final judgment in this case. Therefore, this Court has jurisdiction to decide this case pursuant to 28 U.S.C. § 636(c).

         BACKGROUND

         On January 24, 2017, Plaintiff John Doe filed his Complaint against Purdue University; Purdue University Board of Trustees; Mitchell Elias Daniels, Jr., individually and as agent for Purdue University; Alysa Christmas Rollock, individually and as agent for Purdue University; Katherine Sermersheim, individually and as agent for Purdue University; Erin Oliver, individually and as agent for Purdue University; and Jacob Amberger, individually and as agent for Purdue University. Plaintiff alleges the following facts in his Complaint.

         During the 2015 Fall semester and into January 2016, Plaintiff and Jane Doe, both undergraduate students at Defendant Purdue University, had a dating relationship that included having consensual sexual intercourse from October to December 2015. On December 13, 2015, Jane Doe attempted suicide in front of Plaintiff, after which all sexual activity ended. In January 2016, Plaintiff reported Jane Doe's suicide attempt to Purdue. In mid-to late January 2016, Jane Doe began to distance herself from Plaintiff, and their dating relationship ended. From November 2015 to March 2016, Jane Doe made no reports to the university or to the police of any alleged sexual assault by Plaintiff. (Cmplt. ¶ 19).

         In early April 2016, when Purdue was hosting more than a dozen events to advocate the reporting of sexual assaults, Jane Doe brought a complaint at Purdue against Plaintiff for sexual misconduct. On April 11, 2016, Plaintiff received a letter dated that same date from Defendant Katherine L. Sermersheim, Purdue's Dean of Students, notifying Plaintiff that Purdue had been made aware of sexual allegations regarding Plaintiff's conduct toward another student (Jane Doe) that, if substantiated, might constitute a violation of Purdue's anti-harassment policy; that Purdue had elected to investigate the allegations; and that Defendant Erin Oliver and Defendant Jacob Amberger were appointed as investigators. Consequently, Plaintiff was not allowed to participate in Navy ROTC. Id. at ¶¶ 20-24, 28, 34.

         Accompanying Dean Sermersheim's April 11, 2016 letter was a half-page “Notice of Allegations, ” which included the allegations: (i) Jane Doe and Plaintiff were in a dating relationship during the 2015 Fall semester; (ii) in November 2015, when Jane Doe stayed the night in Plaintiff's room, Plaintiff groped her and she said to him it was not OK; and (iii) Plaintiff told Jane Doe that during another night in November 2015, while they were staying the night in Jane Doe's room, Plaintiff had penetrated her digitally while she was sleeping. Plaintiff promptly submitted a written response to the allegations, stating, in part, that: (i) Jane Doe's accusations were false; (ii) in November 2015 when Jane Doe had stayed in Plaintiff's room, she did not wake up to find Plaintiff groping her; and (iii) in November 2015 Plaintiff had not digitally penetrated her while she was sleeping. Plaintiff also provided details of Jane Doe's suicide attempt. Id. at ¶¶ 25-27, 29-31.

         On April 28, 2016, Plaintiff met with Investigators Oliver and Amberger. Plaintiff denied sexually assaulting Jane Doe and provided texts of his communications with Jane Doe that showed nothing to indicate that a sexual assault had taken place. Plaintiff provided the Investigators with a list of over thirty names to substantiate the credibility of his character and integrity, which had been attacked by Jane Doe. Thereafter, Plaintiff had no further communication with the Investigators. Id. at ¶ 32.

         In the month following the April 28, 2016 meeting with Plaintiff, the Investigators prepared a Report and sent it to Dean Sermersheim. Without giving Plaintiff an opportunity to review it, Dean Sermersheim sent, on May 26, 2016, the Investigator's Report to the panel members of the three-person panel of the Advisory Committee on Equity; and on May 31, 2016, Dean Sermersheim sent a letter to Plaintiff advising him that he was to attend a meeting with the three-person panel on Monday, June 6, 2016, from 2:00 p.m. to 2:30 p.m. Dean Sermersheim's May 31, 2016 letter further advised that the panel members had reviewed the complaint, the written responses, and the Investigator's Report and that the purpose of the meeting was to listen to the parties who could provide clarification. Id. at ¶¶ 35-36.

         On June 6, 2016, Jane Doe did not appear in person before the three-person panel and Dean Sermersheim. Instead, a statement dated June 5, 2016, written for Jane Doe by Monica Soto Bloom, a Title IX Coordinator and Director of the Center for Advocacy, Response, and Education (“CARE”), was submitted to the Advisory Committee. Jane Doe did not appear in person on any other date before the Advisory Committee and/or Dean Sermersheim. Id. at ¶ 37.

         On June 6, 2016, before the meeting with the three-person panel, Plaintiff met with a representative of Navy ROTC, who briefly allowed Plaintiff to see a redacted version of the Investigator's Report. Plaintiff saw that it falsely stated Plaintiff had confessed to the allegations in Jane Doe's complaint. Plaintiff then met with the three-person panel and Dean Sermersheim. The unrecorded meeting lasted for no more than half an hour and did not involve any sworn testimony, did not provide for cross-examination questions, and did not allow for the presentation of documents. The one panel member who had read the Investigator's Report before the meeting asked accusatory questions assuming Plaintiff's guilt, and all the panel members acted with hostility toward Plaintiff. Plaintiff reiterated that the accusations made by Jane Doe against him were false and not substantiated by documentation and that the texts Plaintiff had provided were inconsistent with a sexual assault having taken place. Id. at ¶¶ 38-41.

         On June 14, 2016, Dean Sermersheim sent a letter to Plaintiff advising him that, after considering the information provided by Plaintiff, Jane Doe, and the Investigators and after consulting with the three-member panel of the Advisory Committee on June 6, 2016, “I [Dean Sermersheim] have made the determination that a preponderance of the evidence does support a finding that your [Plaintiff's] conduct violated the Anti-Harassment Policy.” (Cmplt. ¶ 42). Dean Sermersheim's June 14, 2016 letter ordered Plaintiff: (1) to be suspended from Purdue commencing June 13, 2016, for one full academic year; (2) to continue to have no contact with Jane Doe until she completes her academic program; (3) as a condition of re-entry, to complete a 90-minute intervention training or equivalent program offered by the Vice President for Ethics and Compliance or by CARE; and (4) as a condition of re-entry, to meet the Assistant Director of CARE. The letter advised Plaintiff that he could appeal the determination to the Purdue Vice President for Ethics and Compliance, Defendant Alysa Christmas Rollock. Id. at ¶¶ 42-44.

         On June 22, 2016, Plaintiff timely appealed to Vice President Rollock, stating that Jane Doe's allegations of sexual assault were false, that he never digitally or otherwise penetrated Jane Doe while she was sleeping, that the determination he had done so was incorrect, and that his “rights to due process of law have been violated.” Id. at ¶¶ 45-47.

         On or about June 28, 2016, Vice President Rollock sent a letter of that date to Plaintiff stating that she had reviewed Plaintiff's appeal, Dean Sermersheim's letters to Plaintiff, and Jane Doe's letter dated June 14, 2016, and that, because Dean Sermersheim had not included her reasoning in reaching her determination, Dean Sermersheim was being directed to revise her June 14, 2016 letter by June 30, 2016, to include the factual basis for her determination and for the sanctions imposed. Id. at ¶¶ 48-49. The next day, on June 29, 2016, Dean Sermersheim sent a letter to Plaintiff repeating her June 14, 2016 letter, adding only that a preponderance of the evidence supported finding that (1) Jane Doe had fallen asleep on a futon with Plaintiff on the floor beside her and that she woke up to find Plaintiff inappropriately touching her over her clothing and without her consent by placing his hand between her legs and moving it up to her “crotch” area; and (2) on another occasion, while Jane Doe was sleeping, Plaintiff inappropriately touched Jane Doe by digitally penetrating her vagina without her consent. Dean Sermersheim also added that Plaintiff was not a credible witness and that Jane Doe was a credible witness. Id. at ¶ 50.

         Plaintiff alleges that there there was a failure to apply a burden of proof because Jane Doe had no supporting documentation for her allegations, which were made five months after the alleged incidents took place with no contemporaneous reports to the university or the police and which were made after Plaintiff's suicide attempt. In contrast, Plaintiff's statements to the “Notice of Allegations, ” to the Investigators, and to the panel of the Advisory Committee on Equity and Dean Sermersheim consistently denied Jane Doe's allegations, and Plaintiff submitted texts exchanged between Plaintiff and Jane Doe that indicated no sexual assault occurred. Plaintiff alleges that there was no explanation and no evidence supporting Dean Sermersheim's statements about credibility and that, without a hearing that included sworn testimony and cross-examination, there was no basis for making credibility judgments. Plaintiff alleges that only an anti-male bias to find for the female complainant and against the male respondent can explain Dean Sermersheim's purported findings; Plaintiff alleges that he was presumed to be guilty. Id. at ¶¶ 51-54.

         Plaintiff further alleges that the sanctions ordered by Dean Sermersheim did not take into account that Plaintiff had a previously unblemished disciplinary record and that he had presented a list of names that would support his character. Also, by placing decision making as to both the violation and the sanction in one person who is both Dean of Students and Title IX Coordinator, the decision making was allowed to be tailored to give the appearance of vigorous Title IX enforcement to satisfy the United States Department of Education Office of Civil Rights (“OCR”). Id. at ¶¶ 55-57.

         On July 10, 2016, Plaintiff timely submitted an appeal of Dean Sermersheim's re-issued determination and sanctions to Vice President Rollock, asserting: (i) Dean Sermersheim failed to provide the factual basis for her determination as directed and that she merely restated her conclusions at greater length; (ii) Purdue never provided Plaintiff an opportunity to review the Investigator's Report; (iii) “Dean Sermersheim's unsubstantiated conclusion that I am not a credible witness still has not been corroborated with any facts”; (iv) at the June 6, 2016 meeting, two of the three panel members had not read the report and all three were hostile; (v) the accusations of sexual assault were false; (vi) Plaintiff would not act to jeopardize his Navy ROTC scholarship; and (vii) Plaintiff demanded to know the particular evidence used to support Dean Sermersheim's determination and to see the Investigator's Report. Id. at ¶¶ 58-65.

         On July 21, 2016, Vice President Rollock sent a letter to Plaintiff upholding Dean Sermersheim's determination and sanctions without addressing the substantive issues raised by Plaintiff's appeal. On August 16, 2016, Plaintiff involuntarily resigned from Navy ROTC, his dream of serving his country as a Naval officer destroyed. Id. at ¶¶ 66-69, 72.

         On October 11, 2016, three months after Plaintiff's first request for production of records, Purdue Associate Legal Counsel Tandra Foster advised that Plaintiff and his parents could go to Purdue to review the documents. On October 20, 2016, Plaintiff and his mother did so, but they were not permitted to make copies. Id. at ¶¶ 70-71, 73-75.

         Count I of Plaintiff's Complaint in this litigation alleges a claim under 42 U.S.C. § 1983 and the Fourteenth Amendment to the United States Constitution for a denial of Plaintiff's protected liberty interest in “his good name, reputation, honor, and integrity” without due process, id. at ¶ 80, and in his protected property interest in pursuing his education as well as in “future educational and employment opportunities and occupational liberty” without due process, id. at ¶ 81. Plaintiff alleges a constitutionally protected property interest in his continued enrollment at Purdue University and to be free from arbitrary suspension and dismissal arising from the policies, courses of conduct, practices, and understandings established by Purdue. Plaintiff alleges that this constitutionally protected property interest arises from the express and implied contractual relationship between Plaintiff and Purdue. This claim is brought against all Defendants. In the Prayer for Relief, Plaintiff asks for a judgment on Count I against Defendant Purdue and seeks an award of damages for damage to his physical well being, emotional and psychological damages, damages to reputation, past and future economic losses, loss of educational and athletic opportunities, and loss of future career prospects. Plaintiff also seeks an injunction enjoining violations of the Fourteenth Amendment in the process of investigating and adjudicating sexual misconduct complaints.

         Count II alleges a violation of Title IX of the Education Amendments of 1972 on the basis that an “erroneous outcome” occurred in this case because Plaintiff was innocent and wrongly found to have committed sexual assault and because gender bias was a motivating factor in those findings. Plaintiff alleges that “Defendant Purdue failed to conduct an adequate, reliable, and impartial investigation when it investigated Jane Doe's allegations and subsequent adjudication in a manner that was biased against [Plaintiff].” Id. at ¶ 118. Plaintiff alleges that Purdue has created a victim-centered process that prosecutes an accused male student under a presumption of guilt and improperly places the burden of proof on the male student, which Plaintiff experienced. Id. at ¶ 121. Plaintiff alleges that Defendant Sermersheim's responsibilities as both Dean of Students and Title IX Coordinator created a conflict of interest and allowed decision making in particular cases to be tailored to give the appearance of vigorous Title IX enforcement and meet perceived reporting needs to the U.S. Department of Education Office of Civil Rights. Id. at ¶ 125.

         Based upon information and belief, Plaintiff alleges that Defendants were pressured by the Obama Administration's Department of Education into following the Title IX investigative and adjudicatory process mandated by the 2011 Dear Colleague Letter regardless of due process considerations and that Purdue's mishandling of Plaintiff's case was wrongfully affected by federal pressure. Id. at ¶ 129. Plaintiff further alleges that the totality of circumstances establishes that Defendant Purdue has demonstrated a pattern of inherent and systematic gender bias and discrimination against male students accused of misconduct. Id. at ¶ 131. Upon information and belief, Plaintiff alleges that all students who have been suspended or expelled from Defendant Purdue for sexual misconduct have been male, id. at ¶132, and that male respondents, and particularly male athletes and male ROTC members, in sexual misconduct cases at Purdue are discriminated against solely on the basis of sex, id. at ¶ 133. In the Prayer for Relief, Plaintiff asks for a judgment against Defendant Purdue for money damages for damage to his physical well being, emotional and psychological damages, damages to reputation, past and future economic losses, loss of educational and athletic opportunities, and loss of future career prospects. Plaintiff also seeks an injunction enjoining violations of Title IX in the process of investigating and adjudicating sexual misconduct complaints.

         Counts III and IV allege Indiana state law claims of breach of contract and of estoppel and reliance, respectively, against Defendant Purdue.

         STANDARDS OF REVIEW

         A challenge to standing is properly brought under Rule 12(b)(1) for a lack of subject matter jurisdiction. See Fed. R. Civ. P. 12(b)(1); Apex Digital, Inc. v. Sears, Roebuck & Co., 572 F.3d 440, 443 (7th Cir. 2009). The party invoking federal jurisdiction bears the burden of establishing that jurisdiction exists. Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). At the motion to dismiss stage, unless standing is challenged as a factual matter, the court “must accept as true all material allegations of the complaint, drawing all reasonable inferences therefrom in the plaintiff's favor.” Lewert v. P.F. Chang's China Bistro, Inc., 819 F.3d 963, 968 (7th Cir. 2016) (quoting Reid L. v. Ill. State Bd. of Educ., 358 F.3d 511, 515 (7th Cir. 2004)).

         A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency of the complaint and not the merits of the suit. See Gibson v. City of Chi., 910 F.2d 1510, 1520 (7th Cir. 1990). In ruling on such a motion, the Court accepts as true all of the well-pleaded facts alleged by the plaintiff and all reasonable inferences that can be drawn therefrom. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56 (2007); see also Tamayo v. Blagojevich, 526 F.3d 1074, 1082 (7th Cir. 2008). To survive a 12(b)(6) motion to dismiss for failure to state a claim, the complaint must first comply with Rule 8(a) by providing “a short and plain statement of the claim showing that the pleader is entitled to relief, ” Fed.R.Civ.P. 8(a)(2), such that the defendant is given “fair notice of what the . . . claim is and the grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009). Second, the “complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 570); see also Tamayo, 526 F.3d at 1082.

         ANALYSIS

         Defendants seek dismissal of all of Plaintiff's claims under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). In response, Plaintiff pursues only his claims for injunctive relief, his § 1983 claims against the individual defendants, and his Title IX claim against Defendant Purdue University. The Court considers each claim in the Complaint in turn.

         A. Prospective Injunctive Relief-Counts I and II

         Defendants seek dismissal of Plaintiff's claims for prospective injunctive relief in Counts I and II against all Defendants on the basis that Plaintiff lacks standing. To “invoke the jurisdiction of the federal courts, ” a plaintiff “must satisfy the threshhold requirement imposed by Article III of the Constitution by alleging an actual case or controversy.” City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983). A plaintiff “must demonstrate a ‘personal stake in the outcome'” and an “[a]bstract injury is not enough.” Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). “The plaintiff must show that he ‘has sustained or is immediately in danger of sustaining some direct injury' as the result of the challenged official conduct and the injury or threat of injury must be both ‘real and immediate, ' not ‘conjectural' or ‘hypothetical.'” Id. at 101-02 (citing cases). “[A] plaintiff must demonstrate standing for each form of relief sought. A plaintiff may have standing to pursue damages but not injunctive relief, for example, depending on the circumstances.” Kenseth v. Dean Health Plan, 722 F.3d 869, 890 (7th Cir. 2013). Thus, “[t]o have standing for prospective injunctive relief, a plaintiff must face a real and immediate threat of future injury as opposed to a threat that is merely conjectural or hypothetical.” Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017) (internal quotation marks omitted).

         Plaintiff's Complaint asks for injunctive relief related to the claims brought under § 1983 in Count I and under Title IX in Count II:

- against Defendant Purdue “an injunction enjoining violations of the Fourteenth Amendment in the process of investigating and adjudicating sexual misconduct complaints, ” (Cmplt., Prayer for Relief, ¶ (i), p. 66);
- against Defendant Purdue “an injunction enjoining violations of . . . Title IX in the process of investigating and adjudicating sexual misconduct complaints, ” (Cmplt., Prayer for Relief, ¶ (ii), p. 66).

         Although Plaintiff alleges damages as a result of the past enforcement of Purdue's anti-harassment policy against him, neither the prayers for relief nor the remainder of the Complaint seek injunctive relief with respect to any prospective interaction between Plaintiff himself and any Defendant, and Plaintiff does not argue so in his response brief. This is fatal to Plaintiff's claims for injunctive relief under both § 1983 and Title IX because he has not alleged that he is currently subject to the policy or that the policy will be applied to him in the future. See Scherr v. Marriott Int'l, Inc., 703 F.3d 1069, 1074 (7th Cir. 2013) (quoting Lyons, 461 U.S. at 102); see also Sonnleitner v. York, 304 F.3d 704, 718 (7th Cir. 2002) (finding that the Ex Parte Young exception to Eleventh Amendment immunity did not apply to the § 1983 claims because, although the plaintiff alleged a past violation of federal law, he did show an “ongoing” violation of the federal law as to himself); Ceria M. Travis Acad., Inc. v. Evers, No. 16-CV-593, 2016 WL 4098587, at *5 (E.D. Wis. July 28, 2016) (citing Sonnleitner, 304 F.3d at 718).

         In their motion, Defendants argue that Plaintiff does not allege that he is or will be a student at Purdue University. (ECF 19, p. 4). In Paragraph 1 of the Complaint, Plaintiff alleges that he is “a now suspended student at Defendant Purdue University.” (Cmplt. ¶ 1). However, Plaintiff alleges in Paragraph 4 that he “was a student at Purdue University” and that he “presently lives in Upland, Indiana, to attend Taylor University.” (ECF 1, ¶ 4). Thus, Defendant is correct that Plaintiff does not allege that he is currently attending Purdue University or that he intends to do so in the future. Although Plaintiff alleges that he has been given conditions for reinstatement, he does not allege or argue that he intends to seek reinstatement. Standing based on Plaintiff's damages claim stemming from the alleged past constitutional violation of the policy is insufficient to confer standing for prospective injunctive relief related to that policy. Plaintiff cites no case in support of his position that he has standing to bring a claim of injunctive relief under these circumstances.

         The Court grants the Motion to Dismiss Plaintiff's claims for injunctive relief in Counts I and II and dismisses the claims for injunctive relief without prejudice. See Ramsay v. Mayer, 420 F. App'x 586, 588 (7th Cir. 2011) (recognizing that dismissal is without prejudice when based on lack of standing (citing Steel Co. v. Citizens for Better Env't, 523 U.S. 83 (1998))).

         B. Claims Against Defendant Daniels in His ...


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