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Doe v. Indiana University-Bloomington

United States District Court, S.D. Indiana, Indianapolis Division

January 28, 2019

JOHN DOE, Plaintiff,



         This matter is before the Court on a Motion for Preliminary Injunction filed pursuant to Federal Rule of Civil Procedure 65 by Plaintiff John Doe (Filing No. 4). John Doe filed this action against Defendant Indiana University - Bloomington (“IU”) after IU held sexual misconduct disciplinary proceedings and sanctioned him by suspending him for four years. John Doe seeks a preliminary injunction to prevent IU “from suspending him as a sanction resulting from a fundamentally unfair disciplinary process.” Id. at 1. For the following reasons, the Motion for Preliminary Injunction is denied.


         A preliminary injunction is an extraordinary remedy never awarded as a right. In each case, courts must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

To obtain a preliminary injunction, a party must establish [1] that it is likely to succeed on the merits, [2] that it is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in its favor, and [4] that issuing an injunction is in the public interest.

Grace Schools v. Burwell, 801 F.3d 788, 795 (7th Cir. 2015); Winter, 555 U.S. at 20. “The court weighs the balance of potential harms on a ‘sliding scale' against the movant's likelihood of success: the more likely he is to win, the less the balance of harms must weigh in his favor; the less likely he is to win, the more it must weigh in his favor.” Turnell v. CentiMark Corp., 796 F.3d 656, 662 (7th Cir. 2015). “The sliding scale approach is not mathematical in nature, rather it is more properly characterized as subjective and intuitive, one which permits district courts to weigh the competing considerations and mold appropriate relief.” Stuller, Inc. v. Steak N Shake Enterprises, Inc., 695 F.3d 676, 678 (7th Cir. 2012) (citation and internal quotation marks omitted). “Stated another way, the district court ‘sit[s] as would a chancellor in equity' and weighs all the factors, ‘seeking at all times to minimize the costs of being mistaken.'” Id. (quoting Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 12 (7th Cir. 1992)).


         IU is a university of the State of Indiana with its main campus located in Bloomington, Indiana. John Doe enrolled at IU in the fall of 2016 and has been continuously enrolled as an undergraduate student through the fall 2018 semester. He began his undergraduate studies in the Kelley School of Business and has completed six semesters at IU because he has taken classes during the summer (Filing No. 46-1 at 1).

         On September 4, 2017, John Doe attended a “day party” at one of the fraternity houses on IU's campus. While at the party, he encountered Jane Doe. He and Jane Doe had not met before. They interacted and eventually left the party together and went to the fraternity house of which John Doe was a member. John Doe did not live in his fraternity's house and entered a room that belonged to one his friends. The room was a private living room, not a bedroom. They undressed, and John Doe touched Jane Doe's breast and vagina. Then they proceeded to engage in sexual intercourse. While they were engaging in sexual intercourse, an individual walked into the room and saw that they were having sex. That individual left the room. Moments later, other individuals entered the room and saw John Doe and Jane Doe engaging in sexual intercourse. One of the individuals held up their cell phone and took a photograph of John Doe and Jane Doe having sex. In the photograph, John Doe is looking at the person taking the picture with the cell phone, smiling, and giving the “peace sign” hand gesture. The individuals left the room, and John Doe and Jane Doe stopped engaging in sexual intercourse. They got dressed, and John Doe walked Jane Doe back to her sorority house. Id. at 2-4.

         Soon thereafter, John Doe learned that one of the individuals who had entered the room while he was having sex with Jane Doe had taken a photograph of them engaging in sexual intercourse. He also learned that the photograph was shared via SnapChat, an internet messaging application. Someone captured a screen shot of the photograph on SnapChat and sent it to a “GroupMe” chat amongst John Doe's fraternity brothers. Upon learning this, John Doe immediately went to the fraternity president to ask that the photograph be removed from the GroupMe chat. However, the photograph had already been removed by the time John Doe reached the fraternity president. Id. at 4-5.

         John Doe sent Jane Doe a text message to ask how she was doing and to explain that he felt that they “should talk about what just happened.” (Filing No. 1-1 at 1.) She replied that she was fine and texted “#yolo, ” understood by John Doe to mean, “you only live once.” Id. at 2. John Doe sent a text asking her if she knew that someone had taken a photograph of them having sex, and she responded, “Yea but like Idgaf bc u can't see me, ” and “It is just life.” Id. John Doe understood “Idgaf” to mean, “I don't give a fuck” about the photograph because she was not visible in it. Id. John Doe replied and texted, “Are you on birth control lol, ” to which Jane Doe responded that she was on birth control. Id. at 2-3. Lol is understood to mean “laughing out loud”.

         Approximately one week later, on September 12, 2017, IU's Office of Student Conduct (“OSC”) learned of the photograph incident and began an investigation. OSC learned that John Doe was the male student in the photograph. John Doe was interviewed by an OSC investigator on September 29, 2017. During the interview, John Doe gave a verbal statement; however, he declined to identify the female student in the photograph. He explained that the female student in the photograph was not aware that the photograph was being taken. When asked had he consumed alcohol that night, John Doe responded “no” and stated that he does not drink alcohol because it does not make him feel good. He identified one of his fraternity brothers as the individual who took the photograph. Because of social pressure within his fraternity, John Doe declined to file a complaint against the individual who took the photograph and the individual who copied the photograph and posted it on the GroupMe chat (Filing No. 44-10 at 1-2; Filing No. 44-18 at 1, 6; Filing No. 44-1 at 4-5). OSC did not further pursue the investigation of the photograph incident at that time because John Doe declined to file a complaint and because he did not disclose Jane Doe's identity (Filing No. 44-10 at 2). At the time of his interview with OSC, John Doe had no reason to believe that OSC had received a complaint from Jane Doe alleging that he had sexually assaulted her (Filing No. 44-1 at 6).

         John Doe later acknowledged that he lied during his interview with OSC. While he stated in the interview that he did not care that the photograph had been taken, he actually did care. He also lied about drinking alcohol, later acknowledging that he does drink alcohol. Id. at 4-5. During an interview with OSC, the individual who took the photograph of John Doe and Jane Doe stated that he took the photograph as a prank because John Doe was laughing. He also indicated that John Doe's reaction made it seem like it was okay he was in the room and it was okay to take the photograph (Filing No. 44-18 at 24, 26).

         Approximately eight months later, on May 25, 2018, a confidential victim advocate for Jane Doe contacted OSC to schedule a complainant information meeting for Jane Doe. During her meeting with OSC's investigator, Jane Doe reported that the sexual activity portrayed in the photograph was non-consensual, and the photograph was taken without her consent. She informed OSC's investigator that she had given a statement earlier that day to the Indiana University Police Department (“IUPD”). She asked that OSC use her statement to IUPD as her complaint against John Doe for non-consensual sex and against the individuals who took and shared the photograph (Filing No. 44-10 at 2; Filing No. 46-2 at 77-78).

         In her May 25, 2018 statement to IUPD, Jane Doe reported that she had consumed far too much alcohol at the fraternity party in September 2017 and at one point, she fell while in an inflatable pool with her shoes and clothes on. She reported that John Doe tried to kiss her at the party, but she pulled her head away from him. She remembered leaving the party with John Doe, and when they arrived at the other fraternity house, she thought they would only be hanging out; however, John Doe took off his clothes and then her clothes and then immediately started having sex with her. There was little verbal communication, and she did not know what was happening. John Doe “kind of just went right to it.” She felt pain in her groin and was “shocked” at what was happening. She explained that her body panicked, and she was “clenching up.” She wanted it to stop, but she did not know how to “make it stop.” She felt “frozen” and like a “zombie” and she pretended to be asleep so that John Doe would stop. She believed that this is what eventually made him stop. Jane Doe recounted that after John Doe walked her home, he asked her several times if she was okay. She told him she was fine because she wanted him to leave her alone (Filing No. 44-18 at 77-78).

         Four days later, following the Memorial Day holiday weekend, an OSC official contacted IUPD to obtain Jane Doe's statement. The OSC official was informed that IUPD was going to conduct its own investigation and was asked to delay OSC's investigation until after IUPD completed its investigation. Pursuant to IU's standard policy, OSC agreed to wait on gathering facts while the criminal investigation was conducted (Filing No. 44-10 at 2; Filing No. 44-16 at 13).

         On June 1, 2018, approximately a week after Jane Doe talked to IUPD and almost nine months after the sexual activity, John Doe agreed to meet with an IUPD officer to be interviewed. The interview lasted approximately an hour, and at the end of the meeting, John Doe was informed that he was being investigated for rape (Filing No. 46-1 at 6-7; Filing No. 46-2 at 79-80).

         During his interview with IUPD, John Doe admitted that he had consumed five or six beers in a two-hour period at the party and felt drunk (Filing No. 44-18 at 79). This contradicted his statement made during the OSC interview when he stated that he does not drink alcohol because it does not make him feel good. Id. at 6. During the IUPD interview, John Doe reported that Jane Doe was flirting with him at the party, led him around the party, and eventually began “making out” with him at the party. He stated that both he and Jane Doe were drunk. Id. at 79. Yet John Doe later asserted in another OSC interview that there was no indication of intoxication, id. at 8, and he subsequently attested, “I did not witness Jane consuming any alcohol during the party. I assumed she had consumed alcohol because we were at a party, but I did not believe that she was drunk.” (Filing No. 46-1 at 2.)

         John Doe also told the IUPD officer that he and Jane Doe left the party together and stopped at her sorority house so that she could change her wet clothes. He stated that he waited outside Jane Doe's bedroom while she changed her clothes, and then they went to his fraternity house (Filing No. 44-18 at 79). A month after the IUPD interview, John Doe told the county prosecutor that after Jane Doe changed her clothes, he went into her room and they talked. Id. at 10. However, John Doe later attested that he waited outside her bedroom while she changed her pants, and then “Jane invited me into her room and we kissed more.” (Filing No. 46-1 at 3.)

         During his IUPD interview, John Doe stated the following: After he and Jane Doe got to the fraternity house, they sat on a couch and started kissing. He asked Jane Doe if he could rub her breasts, to which she consented, and Jane Doe “grabbed at his genitals.” (Filing No. 44-18 at 79.) He asked Jane Doe if she wanted to have sex, to which she consented, and “he might have digitally penetrated her” before beginning sexual intercourse (Filing No. 44-18 at 79). He reported to the IUPD officer that once they began sexual intercourse, someone came into the room, saw them having sex, and apologized and walked out. He stopped having sex, walked over and locked the door, and then began having sex again. The door opened again, two individuals came into the room, and one of them took a picture of John Doe and Jane Doe. After this happened, John Doe felt bad for himself and Jane Doe, so they stopped having sex, they got dressed, and he walked Jane Doe home. Id. at 79-80.

         John Doe later admitted that Jane Doe did not grab at his genitals (Filing No. 44-1 at 10). During a subsequent interview with OSC, John Doe asserted that he asked for Jane Doe's consent “every step of the way” and for “every act, every next step, ” including asking if he could “finger her, ” meaning digitally penetrate her. He reported that Jane Doe gave her consent and then he digitally penetrated her. Id. at 9.

         On June 1, 2018, the same day that John Doe was interviewed by IUPD, OSC was notified by IUPD that it could proceed with its own investigation once IUPD sent Jane Doe's statement to OSC. Her statement was received by OSC on June 5, 2018, and OSC immediately began its investigation. That same day, OSC ...

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