Doe v. The University of South Alabama et al

Filing 19

Order DENYING Plf's 6 MOTION for Temporary Restraining Order as set out. Court finds that expedited discovery should be granted, but only to the extent for the Preliminary Injunction hearing as set out. Dfts are to provide the requested disc overy, as limited as set out, to Plf's counsel on or before 9/25/17. Hearing on 6 MOTION for Preliminary Injunction is SCHEDULED for 10/3/2017 at 09:30 AM in US Courthouse, Courtroom 2B, 113 St. Joseph Street, Mobile, AL 36602 before Senior Judge Callie V. S. Granade. The parties are to notify the Court by written notice of the expected length of the hearing NLT 9/27/2017. 9 MOTION to Proceed Anonymously as John Doe is GRANTED, & the parties are ORDERED to protect the Plf's identity & also to protect the identity of the complainants, the witnesses in the disciplinary proceedings, the UDC members & other student participants as set out. Signed by Senior Judge Callie V. S. Granade on 9/8/17. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN DOE,
Plaintiff,
vs.
THE UNIVERSITY OF SOUTH
ALABAMA; et al.,
Defendants.

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) CIVIL ACTION NO. 17-0394-CG-C
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ORDER

This matter is before the Court on Plaintiff’s motion for Temporary
Restraining Order (TRO) and Preliminary Injunction (Doc. 6), and Defendants’
opposition thereto (Doc. 16). The Court finds that Plaintiff has not met his burden of
showing a substantial likelihood of success on the merits. Therefore, the motion for
TRO will be denied, but the Court will grant limited expedited discovery and set a
hearing on Plaintiff’s motion for Preliminary Injunction. The Court also finds it
appropriate to grant Plaintiff’s motion to proceed anonymously as John Doe. (Doc. 9).
I. BACKGROUND
This case arises from disciplinary actions that were initiated against Plaintiff
John Doe, at The University of South Alabama (“South Alabama”). Plaintiff was
enrolled as a student at South Alabama for the fall semester of 2016 and the spring
semester of 2017 and he enrolled for the current fall semester of 2017. (Doc. 1, ¶
3(a)). Plaintiff is the recipient of an Army ROTC scholarship through which he

received full tuition scholarship and fees, as well as a monthly subsidence check and
money for books. (Doc. 1, ¶ 3(a)).
In October 2016, Plaintiff was notified that he had “been listed as the
responsible person in a violation of the Code of Student Conduct,” for engaging in
sexual violence towards two individuals (hereafter referred to as Roe 1 and Roe 2).
(Doc. 1-2, p. 89). The “sexual violence” he allegedly engaged in was defined or listed
in the notice as “[a]ny physical sexual acts perpetrated against a person’s will or
where a person is incapable of giving consent.” (Doc. 1-2, p. 89). After a hearing,
Plaintiff was notified that the University Disciplinary Committee (“UDC”) had found
Plaintiff “responsible” for the violation and as a result there was a mutual “No
Contact Order” between Plaintiff and Roe 1 and Roe 2; that Plaintiff was on conduct
probation for the remainder of his academic career, that he was to complete 100
hours of community service, that his housing contract was terminated, and that he
was to complete an educational module on prevention of sexual violence. (Doc. 1-4, p.
4). Plaintiff appealed the decision and Defendant Michael A. Mitchell, who is the
Vice President for Student Affairs and Dean of Students and Deputy Title IX
Coordinator for Students, upheld the decision but modified the sanction imposed and
allowed Plaintiff to maintain campus residence. (Doc. 1-4, pp. 7-8).
By letter dated November 16, 2016, Plaintiff was notified that a third female
student (hereafter referred to as Roe 3) had reported to the Title IX Office that
Plaintiff had engaged in sexual misconduct off campus, alleging that she was too
incapacitated to provide consent for sex. (Doc. 1-4, p. 10-11). The notice stated that

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an impartial investigation of the allegation would be conducted. (Doc. 1-4, p. 10).
Plaintiff then filed a sexual assault Title IX complaint against Roe 3 alleging that
Roe 3 had transmitted a sexually transmitted disease to him. (Doc. 1, ¶ 160).
Plaintiff requested that the Assistant Dean of Students, Defendant Andrea C.
Agnew, recuse herself because Plaintiff asserted that he may call her as a witness,
that she had exhibited animus and malice against Plaintiff in the prior hearing, and
that she had personally participated in the investigation. (Doc. 1-4, p. 17). In
response, Defendant Mitchell stated that though he “did not find any prior conduct
by Dr. Agnew merits her removal from this proceeding Dr. Agnew has recused
herself from today’s proceeding.” (Doc. 1-4, p. 16). The two cross-complaints were
heard by the same UDC panel. (Doc. 1, ¶ 174). After the hearing, Plaintiff was
found “responsible” by the UDC of violating the Code of Student Conduct for
engaging in “sexual violence.” (Doc. 1-4, pp. 19-20). Roe 3 was found “not
responsible.” (Doc. 1-4, pp. 23-24). Plaintiff appealed the decisions. Defendant
Mitchel upheld the finding that Roe 3 was “not responsible” but found that the
charge against Plaintiff should be heard again during a new proceeding with a
different committee. (Doc. 1-4, pp. 27-28). Defendant Mitchell stated that “the
introduction of prior allegations against you was significant enough to warrant that
this charge be heard again.” 9Doc. 1-4, p. 27). Defendant Mitchell stated that
Defendant Agnew would preside over the new hearing because her “level of
experience presiding over Title IX hearings will provide additional assurance that all
required policies and procedures will be followed.” Defendant Mitchell further
stated that he had “not found any indication that [Agnew] has any conflict of interest
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in such participation, as her role throughout these proceedings has been as a neutral
investigator and facilitator.” (Doc. 1-4, p. 27).
A new UDC panel heard the case on August 15, 2017 and concluded that
Plaintiff was “responsible.” (Doc. 1-4, pp. 30-31). The Committee found that Roe 3
“did not provide consent to engage in sexual activity with the respondent as defined
in the University of South Alabama Sexual Misconduct Policy & Complaint
Resolution Procedures.” (Doc. 1-4, p. 31). As a result Plaintiff was suspended from
South Alabama effective August 16, 2017 until the summer 2018 term and was
prohibited from visiting the campus for any reason without prior clearance by the
Office of the Dean of Students. (Doc. 1-4, p. 30). A mutual “No Contact Order”
between Roe 3 and Plaintiff was also put in place and it was reiterated that Plaintiff
was on conduct probation for the remainder of his academic career at South
Alabama. (Doc. 1-4, p. 30). Plaintiff appealed the decision and on August 28, 2017,
Mitchell upheld the decision and sanctions. (Doc. 1-4, pp. 33-34).
In his motion for Temporary Restraining Order (TRO) and Preliminary
Injunction, Plaintiff requests that this Court order South Alabama to 1) reinstate
him immediately, 2) order South Alabama to place him immediately back into the
ROTC program, 3) declare that Defendants’ rules and policies and actions as applied
were unconstitutional or in violation of the contractual equivalent of due process,
good faith and fair dealing and fundamental fairness, and 4) enjoin the Defendants
from releasing Plaintiff’s identity and the results of the decisions made the basis of
this action.

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II.

LEGAL STANDARD
This Court previously noted the applicable standard for preliminary

injunctive relief in Hammock ex rel. Hammock v. Key, 93 F.Supp.2d 1222 (S.D. Ala.
2000):
A party seeking a preliminary injunction must establish the following
four factors: (1) a substantial likelihood of success on the merits; (2) a
threat of irreparable injury; (3) that its own injury would outweigh the
injury to the nonmovant; and (4) that the injunction would not disserve
the public interest. Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir.1999);
McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998).
The Court should be mindful that a preliminary injunction is an
extraordinary and drastic remedy not to be granted unless the movant
has clearly satisfied the burden of persuasion as to the four requisites.
McDonald's, 147 F.3d at 1306; Northeastern Fl. Chapter of the Ass'n of
Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285
(11th Cir.1990).
Id. at 1226-27. The same standard applies to a request for a temporary restraining
order as to a request for a preliminary injunction. Morgan Stanley DW Inc., v.
Frisby, 163 F.Supp.2d 1371, 1374 (N.D. Ga. 2001) (citing Ingram v. Ault, 50 F.3d
898, 900 (11th Cir.1995)). Upon consideration of the evidence presented, the Court
concludes that plaintiff has not met this burden.
III.

ANALYSIS
Plaintiff claims he will be irreparably injured if he is not allowed to continue

in his classes this semester as an ROTC scholarship student. He was prohibited
from doing so by South Alabama as a sanction after being found “responsible” for
sexual misconduct towards Roe 3 in the August 15, 2017 discipline hearing. The
decision was upheld on appeal by Defendant Mitchell on August 28, 2017. Plaintiff

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also claims he would be irreparably harmed if Defendants were to release his
identity and the results from any or all of the disciplinary hearings.
As to the release of Plaintiff’s identity and the results, Defendants state that
they have no present intention of publicly displaying Plaintiff’s identity. (Doc. 16, p.
25). Defendants have also responded to Plaintiff’s motion to proceed anonymously
(Doc. 9), by stating that they do not oppose the motion but request in return that the
student complainants continue to be identified as Jane Roe 1, Jane Roe 2, and Jane
Roe 3 as identified in the Complaint. (Doc. 17). Defendants also request that the
witnesses in the disciplinary proceedings, the UDC members and the other student
participants be identified by aliases to preserve their anonymity. The Court finds it
appropriate to Grant Plaintiff’s motion to proceed anonymously and to order that all
of the individuals mentioned above be referred to by aliases.
The first factor Plaintiff must establish to succeed on his motion for TRO is a
substantial likelihood of success on the merits. Defendants contend that Plaintiff has
not established this factor. Plaintiff’s basis for claiming that the Defendants should
be ordered to reinstate him is that the discipline hearing violated his due process
rights. Plaintiff claims the hearing was unfair because: 1) unsworn witness
statements, rather than affidavits were presented at the hearing and Plaintiff could
not cross-examine those witnesses because they did not appear at the hearing, 2)
South Alabama refused to disclose what accommodations Roe 3 was afforded and
Plaintiff was not permitted to cross-examine Roe 3 on this point, 3) Plaintiff was not
permitted to cross-examine Roe 3 regarding the transmission to him of a sexually

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transmitted disease, and 4) the decision makers were biased.
Plaintiff objects to the unsworn witness statements having been used at the
hearing on the basis that they violate South Alabama’s own rules and because they
resulted in Plaintiff not being able to cross-examine the witnesses. The Student
Code of Conduct expressly states that the complainant and respondent have “[t]he
right to present evidence by witness, or by affidavit if a witness is unable to attend
the hearing” and “[t]he right to question all witnesses at the disciplinary hearing.”
(Doc. 1, pp. 9-10). The witness statements in question were not affidavits and it was
not shown that all of the witnesses were unable to attend. However, the statements
in question were not submitted by Roe 3 pursuant to her right to present witnesses.
The statements were contained in the investigation materials submitted to the UDC.
South Alabama’s Sexual Misconduct Policy and Complaint Resolution Procedures
require the Investigating Officer to conduct an investigation and gather information
and statements from witnesses and other sources and they require the Investigating
Officer to transmit the investigation report and any appended information to the
UDC before the hearing. (Doc. 1-2, pp. 28, 29). The parties were reportedly provided
the opportunity to review the investigation materials before the hearing and could
have notified a potential witness and requested that they appear.
Plaintiff asserts that he has the right to confront adverse witnesses when the
information supplied by those witnesses is the reason for the adverse action and
there is a question of credibility to be resolved by the finder of facts. The right to
cross-examine witnesses generally has not been considered an essential requirement

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of due process in school disciplinary proceedings. Winnick v. Manning, 460 F.2d 545,
549 (2d Cir. 1972) (citation omitted).
Due process does not invariably require the procedural safeguards
accorded in a criminal proceeding. Rather, ‘[t]he very nature of due
process negates any concept of inflexible procedures universally
applicable to every imaginable situation.’
Id. (citation omitted). “All that is required by the Due Process Clause, which sets a
floor or lower limit on what is constitutionally adequate, is ‘sufficient notice of the
charges ... and a meaningful opportunity to prepare for the hearing.’ ” Flaim v. Med.
Coll. of Ohio, 418 F.3d 629, 639 (6th Cir. 2005). In Flain, the Court noted that
“[s]ome circumstances may require the opportunity to cross-examine witnesses,
though this right might exist only in the most serious of cases.” Id. at 636. Plaintiff
was given notice of the charges and the evidence contained in the investigation
report and was given the opportunity to present an opening statement and to
present witnesses or other evidence to address any discrepancies in the statements.
Although due process may require a limited ability to cross-examine witnesses in
school disciplinary hearings where credibility is at issue, Doe v. Cummins, 662 F.
App'x 437, 448 (6th Cir. 2016), Plaintiff was permitted to orally pose questions to the
presiding officer who then posed the questions to Roe 3. Thus, he was permitted to
cross-examine the complainant during the hearing in a meaningful way. As
discussed above, the witness statements were merely part of the investigative
report. The witnesses did not testify against him at the hearing and the statements
were reportedly not read during the hearing. After review of the case law and
arguments submitted by the parties, the Court finds that Plaintiff has not met his

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burden of showing a substantial likelihood of success on the basis of the use of the
unsworn statements or Plaintiff’s claimed inability to cross-examine witnesses.
The Court finds Plaintiff has also not met his burden of showing that he was
denied due process based on Defendants’ non-disclosure of the accommodations that
were afforded to Roe 3 or because he was not permitted to cross-examine Roe 3
regarding the transmission to him of a sexually transmitted disease. Plaintiff has
not shown that such evidence was relevant to the charges being addressed at the
August 15, 2017 hearing.
As to Plaintiff’s contention that Defendants Agnew and Mitchell or the UDC
panel were biased, the Court finds that Plaintiff has not met his burden of showing
that he is likely to succeed on that claim. Plaintiff has not pointed to any evidence
that Agnew or Mitchell or the members of the UDC panel were overtly biased. Any
alleged prejudice “must be evident from the record and cannot be based in
speculation or inference.” Nash v. Auburn Univ., 812 F.2d 655, 665 (11th Cir. 1987).
A decision maker is not deemed biased solely because they participated in the initial
investigation of the incident and initiation of the cause under consideration. Id. at
666 (quoting Duke v. North Texas State University, 469 F.2d 829, 834 (5th
Cir.1972)). “The record must support actual partiality of the body or its individual
members.” Id.
The Court after reviewing the circumstances of the disciplinary hearing and
the Defendants’ decisions finds that Plaintiff has not met his burden of showing a
substantial likelihood of success. The Defendants arguably followed all of South

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Alabama’s policies and procedures, they provided Plaintiff with notice of the charges
and the evidence gathered in their investigation, and they afforded Plaintiff a
hearing with an opportunity to present a statement and present witnesses and other
evidence in his defense. The Court does not find that Plaintiff has shown a
substantial likelihood of establishing a violation of his due process rights regarding
the hearing and the decisions that led to Plaintiff receiving the sanction of
suspension for two semesters.
Because the failure to show any of the four factors is fatal to Plaintiff’s motion
for TRO, the Court declines to discuss the remaining factors and finds Plaintiff’s
motion for TRO is due be denied.

CONCLUSION
For the reasons stated above, Plaintiff’s motion for Temporary Restraining
Order and Preliminary Injunction (Doc. 6), is DENIED IN PART in that the
request for a Temporary Restraining Order is DENIED.
The Court finds it appropriate to set a hearing on Plaintiff’s motion for
Preliminary Injunction. However, Plaintiff has requested expedited discovery prior
to any Preliminary Injunction hearing. (Doc. 11). Defendants oppose the motion for
expedited discovery. (Doc. 18). The Court finds that expedited discovery should be
granted, but only to the extent necessary for the Preliminary Injunction hearing.
Plaintiff’s motion only addresses the hearing and decisions that relate to Roe 3’s
claim of sexual misconduct and that resulted in the sanction of suspension.
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Accordingly, the scope of the expedited discovery should be limited to the hearing
recordings, investigative files and internal correspondence regarding the hearing of
August 15, 2017 and Defendant Mitchell’s decision to uphold the finding of that
hearing that Plaintiff was “responsible.” The Court finds that any discovery related
to Plaintiff’s prior disciplinary hearings is not necessary for the Preliminary
Injunction hearing. Defendants report that they need time to provide reasonable
notice to the affected students and time for them to seek protective action. They also
state that a protective order will be necessary before any documents can be produced
and that they will need time to redact student names from documents. Upon
consideration, Defendants are ORDERED to provide the requested discovery, as
limited above, to Plaintiff’s counsel on or before September 25, 2017.
A hearing on Plaintiff’s motion for Preliminary Injunction is hereby
SCHEDULED for Tuesday, October 3, 2017 at 9:30 a.m. at the United States
Courthouse, Courtroom 2B, 113 St. Joseph St., Mobile, Alabama. The parties are
ORDERED to notify the Court by written notice of the expected length of the
hearing no later than September 27, 2017.
It is FURTHER ORDERED that Plaintiff’s motion to proceed anonymously
as John Doe (Doc. 9), is GRANTED and the parties and counsel are hereby
ORDERED to protect the Plaintiff’s identity and also to protect the identity of the
complainants, the witnesses in the disciplinary proceedings, the UDC members and
the other student participants. The complainants should be referred to as Jane Roe
1, Jane Roe 2 and Jane Roe 3 as identified in the Complaint and the other student

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participants should be identified by aliases.
DONE and ORDERED this 8th day of September, 2017.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE

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