Johnson v. Western State Colorado University et al

Filing 194

ORDER denying 182 Motion to Lift Stay of Discovery. Plaintiff shall file his response to Defendants' 178 Motion to Dismiss in accordance with the Court's 12/2/2014 Order. By Judge William J. Martinez on 1/20/2015.(alowe)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 13-cv-2747-WJM-KMT
KEIFER JOHNSON,
Plaintiff,
v.
BRAD BACA, in his official capacity as President of Western State Colorado University,
GARY PIERSON, in his official capacity as Vice President of Student Affairs & Dean of
Students,
SARA PHILLIPS, in her official capacity as Title IX Coordinator,
CHRIS LUEKENGA, in his official capacity as Associate Vice President for Student
Affairs, and
SUSAN COYKENDALL, in her official capacity as an employee of Western State,
Defendants.

ORDER DENYING PLAINTIFF’S MOTION TO LIFT STAY OF DISCOVERY

Plaintiff Keifer Johnson (“Plaintiff”) brings this action against employees of
Western State University (“Defendants”) alleging that a disciplinary action taken against
him by the University violated his rights. (Third Am. Compl. (ECF No. 138) pp. 48-82.)
Plaintiff’s Third Amended Complaint brought twelve causes of action: four alleging
gender discrimination in violation of Title IX, five alleging civil rights violations under 42
U.S.C. § 1983, and three state law claims. (Id.) On October 24, 2014, the Court
granted Defendants’ Motion to Dismiss except as to Plaintiff’s Fifth Claim for Relief
alleging a violation of Plaintiff’s First Amendment rights (“First Amendment Claim”),
which remains pending in this case in so far as it seeks expungement of the first
disciplinary proceeding from Plaintiff’s official academic record. (ECF No. 173.)

Defendants then filed a Motion to Dismiss the only remaining claim pursuant to
Federal Rule of Civil Procedure 12(b)(1), arguing that the Court lacks jurisdiction
because there is no mention of the first disciplinary proceeding in Plaintiff’s official
academic record that could be expunged. (ECF No. 178.) In response to Defendants’
Motion to Dismiss, Plaintiff filed a Motion to Lift Stay of Discovery Pursuant to Rule
56(d), which is presently before the Court (“Motion”). (ECF No. 182.) Plaintiff contends
that Defendants’ Motion to Dismiss is essentially a motion for summary judgment, and
that the Court should permit him to obtain discovery in accordance with Rule 56(d). (Id.)
The Court disagrees that Defendants’ Motion to Dismiss is essentially a summary
judgment motion simply because it refers to matters outside of the complaint. Under
Rule 12(b)(1), a party asserting that the Court lacks jurisdiction “may go beyond
allegations contained in the complaint and challenge the facts upon which subject
matter jurisdiction depends.” United States v. Rodriguez-Aguirre, 264 F.3d 1195, 1203
(10th Cir. 2001). In such cases, a court does not “presume the truthfulness of the
complaint’s factual allegations” but instead “has wide discretion to allow affidavits, other
documents, and a limited evidentiary hearing to resolve disputed jurisdictional facts.” Id.;
see also Breakthrough Mgmt. Grp., Inc. v. Chukchansi Gold Casino & Resort, 629 F.3d
1173, 1188 (10th Cir. 2010) (“Because a 12(b)(1) motion is a speaking motion and can
include references to evidence extraneous to the complaint without converting it to a
Rule 56 motion, the district court had wide discretion to allow affidavits, documents and
even a limited evidentiary hearing to resolve disputed jurisdictional facts under
12(b)(1).”) (internal alterations and quotations omitted). Thus, the Court finds that Rule
56(d) does not apply at this juncture of the case, but will consider whether Plaintiff has
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shown that the Court should permit him to undertake limited discovery in order to
respond to Defendants’ Rule 12(b)(1) Motion.
Plaintiff contends that he needs the following discovery in order to properly
respond to Defendants’ Motion to Dismiss:
1.
2.
3.

4.
5.
6.
7.

8.

9.

10.

11.

12.

What exactly was in Plaintiff’s student files;
What is currently in Plaintiff’s student files;
What records from the First Disciplinary Proceeding
may have been inextricably joined with other incidents
that were part of that proceeding and continue to
exist;
What the school deems as “important documents”
maintained in student files;
What the school deems “related to” disciplinary
records;
Exactly who had, has, or will have in the future,
access to Plaintiff’s student files;
Who obtained access of the Plaintiff’s disciplinary
records and where, in addition to the four potential
locations already identified, such records might
continue to exist;
What and where are the formal policies concerning
maintenance and dissemination of student records,
including how such policies are established, who
establishes such policies, and what the policies
currently are, and how those policies are
implemented;
Who decided to remove Plaintiff’s records from
electronic files on October 31, 2014; why the files
were removed at that time; what actions were taken to
remove the files; what specific communications were
had with others who previously had access to the
Plaintiff’s records; and what actions were taken to
remove files from other, non-central locations;
Whether declarant Pierson was, in fact, aware that
Plaintiff’s student files continued to exist at the time
he made his declaration;
What the athletic department’s policies are
concerning releasing or discussing student histories
with other schools making inquiries about student
transfers through the athletic department; and
How the school discloses student records in order to
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comply with statutes and regulations other than the
Family Educational Rights and Privacy Act.
(ECF No. 182 at 4-5.) In response, Defendants contend that Plaintiff already has the
only materials needed to respond to their Motion to Dismiss because Defendants have
provided a copy of Plaintiff’s official academic record. (ECF No. 192 at 3.) Defendants
argue that all of the other information requested by Plaintiff is irrelevant to the Motion to
Dismiss. (Id.) Because the Court agrees with Defendant, it will deny Plaintiff’s Motion.
The Court previously dismissed all claims brought in Plaintiff’s Third Amended
Complaint except for Plaintiff’s claim for prospective injunctive relief arising out of the
alleged First Amendment violation. (ECF No. 173.) With regard to his request for
prospective injunctive relief, Plaintiff alleges in his Third Amended Complaint that he “is
entitled to injunctive relief that requires Western State to expunge his official student file
with the Office of Student Affairs at Western State regarding all information related to
the First Disciplinary Proceeding.” (ECF No. 138 ¶ 293.) Thus, the only issue
remaining in this case is whether Plaintiff is entitled to expungement of “all information
related to the First Disciplinary Proceeding” from his “official student file.”
Defendants’ Motion to Dismiss argues that there is no mention of the first
disciplinary proceeding in Plaintiff’s official student file. (ECF No. 178.) The Motion to
Dismiss is brief, and is targeted directly at this single issue. (Id.) Plaintiff has blatantly
failed to explain why he would need the wide-ranging discovery he requests in the
instant Motion to respond to the Motion to Dismiss. The materials requested by Plaintiff
may have been relevant if Plaintiff were pursuing some cause of action related to
mishandling of records, or had some broader claim remaining in this action, but the
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Court has rejected Plaintiff’s attempt to inject an individual capacity claim into this case,
and has dismissed Plaintiff’s request for retrospective declaratory relief. Given the
narrow scope of the single claim remaining in this case, the Court can discern no basis
for how any of the materials requested (other than Plaintiff’s actual record) are possibly
relevant to whether Plaintiff’s official academic record contains any information related
to the first disciplinary proceeding. Thus, the Court finds that Plaintiff has failed to meet
his burden of showing that jurisdictional discovery is appropriate in this case. See
Breakthrough Mgmt., 629 F.3d at 1190 n.11 (the party seeking jurisdictional discovery
has the burden to show a legal entitlement to the requested materials).
For the reasons set forth above, Plaintiff’s Motion to Lift Stay of Discovery
Pursuant to Fed. R. Civ. P. 56(d) (ECF No. 182) is DENIED. Plaintiff shall file his
response to Defendants’ Motion to Dismiss in accordance with the Court’s December 2,
2014 Order.
Dated this 20th day of January, 2015.
BY THE COURT:

William J. Martínez
United States District Judge

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