Doe v. University of Kentucky et al

Filing 38

MEMORANDUM OPINION & ORDER: (1) That Defendants' Motion for Abstention 26 isGRANTED; (2) That Plaintiff's Motion for Preliminary Injunction 3 and Supplemental Motion for Preliminary Injunction 15 are DENIED, and DISMISSED WITHOUT PRE JUDICE; (3) That Defendants' Motion to Dismiss 25 is GRANTED IN PART with respect to Plaintiff's monetary claims against Defendant Simpson and DENIED AS MOOT IN PART with respect to Plaintiff's claims for equitable relief;(4) That Pl aintiff's claims for monetary relief against Defendant Simpson are DISMISSED WITH PREJUDICE; (5) That Plaintiff's Motion to Consolidate Cases 37 is DENIED AS MOOT; and (6) This action is STRICKEN from the active docket of this Court. Signed by Judge Joseph M. Hood on 1/15/16.(LC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION AT LEXINGTON

)
)
)
Plaintiff,
) Action No. 5:15-CV-300-JMH
)
v.
)
)
MEMORANDUM OPINION
VICTOR HAZARD, in his
)
AND ORDER
official capacity as
)
Associate Vice President for )
Student Affairs and
)
Dean of Students,
)
University of
)
Kentucky
)
)
DENISE B. SIMPSON, in her
)
individual capacity and
)
official capacity as
)
Director of the Office of
)
Student Conduct, University )
Of Kentucky
)
)
Defendants.
)
)
)
JOHN DOE,

**
Pending
Preliminary

before

**
the

Injunction

[DE

**
Court
3]

**
is
and

**
Plaintiff’s

Motion

for

Supplemental

Motion

for

Preliminary Injunction [DE 15], Defendants’ Motion to Dismiss [DE
25], Defendants’ Motion for Abstention [DE 26], and Defendants’
Motion to Consolidate Cases [DE 37]1. Having reviewed the motions,

1

Defendants have moved to consolidate this action and the case styled Jane Doe
v. University of Kentucky, Case No. 5:15-cv-296, also pending before the Court.
Because the cases involve two different factual situations, the Court declines

responses, and replies, and being otherwise adequately advised,
the Court concludes that it is precluded from adjudicating this
matter pursuant to Younger v. Harris, 401 U.S. 37 (1971) for the
reasons set forth below.

The Court further finds that Defendant,

Denise

entitled

B.

Simpson,

is

to

qualified

immunity,

and,

therefore, Plaintiff’s claims for monetary relief against Simpson
must be dismissed as discussed below.
I.
The claims of Plaintiff, John Doe (“Doe”), asserted herein,
including his request for injunctive relief, arise out of a student
disciplinary hearing brought against Doe by the University of
Kentucky (“UK” or the “University”).

As the Court understands, a

complaint was lodged with the UK Office of Student Conduct (“OSC”)
by an unidentified individual alleging that Doe, who at the time
was enrolled at UK, had engaged in certain sexual activities with
Student A, a female student who was also enrolled at UK.

Upon

learning of these allegations, as required by Title IX of the
Education Amendments of 1972, 20 U.S.C. §§ 1681-88, UK initiated
an investigation to determine if the allegations against Doe were
supported by reasonable suspicion.

Having determined that they

were, UK then initiated a student disciplinary proceeding against
Doe for a violation of the University Administrative Regulations

to consolidate the cases. Regardless, Defendant’s Motion to Consolidate [DE
37] is rendered moot by virtue of this Order.

2

§

6.2—Policy

on

Sexual

Assault,

Stalking,

and

Relationship

Violence.
An initial student disciplinary hearing occurred on or about
October 7, 2014, in which the Hearing Panel found that Doe had
violated the Code of Student Conduct and assessed a one-year
suspension of Doe.

[DE 1 at ¶22; DE 3-1 at 6].

Doe appealed the

October 7, 2014 ruling to the University Appeals Board (the “UAB”),
and on December 2, 2014, the UAB reversed the Hearing Panel’s
October 7, 2014 ruling.

[DE 1 at ¶23].

The UAB found that UK had

violated Doe’s due process rights and the Code of Student Conduct,
including by Defendant Simpson’s withholding of critical evidence
and witness questions from the Hearing Panel, and determined that
a new hearing was compelled. [DE 5-1].
On April 7, 2015, a second hearing was held, and on April 9,
2015, the Hearing Panel issued a second ruling, finding again that
Plaintiff had violated the sexual misconduct policy.
¶24; 3-1 at 7].
suspension.

Id.

[DE 1 at

This time, the Hearing Panel issued a five-year
Doe appealed to the UAB, and on May 27, 2015,

the UAB again found due process errors with the hearing, including
Defendants improperly letting the OSC (rather than the Hearing
Panel) decide to partition Doe and his advisors from Student A,
improperly denying Doe the “supplemental proceeding” described in
Article II, § 34(k) of the Student Code, and finding ex parte
communications were made between Student A, Defendant Simpson, and
3

the hearing panel with respect to sanctions.
2].

[DE 1 at ¶¶25-27; 5-

The UAB set aside the Hearing Panel’s ruling and returned the

matter to the OSC for further consideration.

Id.

The OSC scheduled a third hearing to occur on October 9, 2015.
On October 6, 2015, Doe filed this action seeking to enjoin
Defendants from conducting the third hearing based on alleged
constitutional flaws in the University’s policies and procedures
that govern sexual misconduct hearings and asserting due process
and equal protection claims under the U.S. Constitution and federal
laws, specifically, 42 U.S.C. §§ 1983 and 1988, and Title IX of
the Education Amendments Act of 1972, 20 U.S.C. §§ 1681 et seq.2
Plaintiff alleges that the third hearing will suffer from the same
constitutional deficiencies as the two prior hearings.
In their response to Plaintiff’s Motion and Supplemental
Motion for Preliminary Injunction, Defendants represent that any
constitutional deficiencies in the disciplinary process will be
cured during the third hearing by the following:

Doe will receive

a new Hearing Panel consisting of three independent persons; a
Hearing Officer, namely, Professor of Law Robert G. Lawson, will
oversee

the

proceeding,

including

the

decision

to

partition

witnesses, and rule on all questions of substantive, evidentiary

2

Doe also filed a motion for Temporary Restraining Order
for a hearing before this Court on October 8, 2015.
announced that it would cancel the third student conduct
October 9, 2015 and reconvene a new hearing panel for a
reason, the Court denied Doe’s Motion for TRO as moot.

4

(“TRO”) which came on
At that hearing, UK
hearing scheduled for
later date. For this

or procedural law but will not vote with the Hearing Panel; Doe
will have the assistance of legal counsel (although counsel may
not make arguments or examine witnesses); if Student A testifies,
as Defendants believe she will, Doe will have the opportunity to
cross-examine her by submitting questions to the Hearing Officer,
who will ask the questions; Doe will be permitted to call his own
witnesses, present relevant evidence, and to offer any defense
including an affirmative defense of personal incapacitation; at
the close of the proof, the Hearing Panel will deliberate and fill
out a verdict form prepared by the Hearing Officer; Doe’s alleged
violation must be proven by a preponderance of the evidence
standard; and, if dissatisfied with the hearing procedure and/or
result, Doe will be permitted to appeal to an independent tribunal.
II.
Defendants argue in their Response to Plaintiff’s Motion for
Preliminary Injunction [DE 24] and Motion for Abstention [DE 26]
that, pursuant to Younger v. Harris, 401 U.S. 37 (1971), this Court
must abstain from hearing this case.

For the reasons set forth

below, the Court agrees.
Stated generally, Younger abstention is a legal doctrine that
warrants against federal court interference with pending state
judicial proceedings absent extraordinary circumstances.

The

Younger doctrine is based on principles of equity and comity,
including “a proper respect for state functions, a recognition of
5

the fact that the entire country is made up of a Union of separate
state governments, and a continuance of the belief that the
National

Government

will

fare

best

if

the

States

and

their

institutions are left free to perform their separate functions in
their separate ways.”
Younger,

this

proceedings

Court

that

important

state

plaintiff

with

are

Younger, 401 U.S. at 44.
should
(1)

interest;
an

adequate

constitutional claims.”

abstain

currently
and

(3)

where

“there

pending;
will

opportunity

Pursuant to

(2)

provide
to

are

state

involve

an

the

raise

federal

his

or

her

Habich v. City of Dearborn, 331 F.3d 524,

530 (6th Cir. 2003); see also Middlesex County Ethics Comm. v.
Garden State Bar Ass’n, 457 U.S. 423 (1982).
It is undisputed that there is a pending student disciplinary
proceeding between Doe and UK, however, the Court must determine
whether the pending disciplinary proceeding constitutes a “state
proceeding” as contemplated by Younger and its progeny.

Although

the Younger doctrine arose as a suit to enjoin a pending state
criminal proceeding, it has expanded substantially, including to
civil

actions.

See

Huffman

v.

Pursue,

Ltd.,

420

U.S.

592

(1975)(holding that Younger applied to the state of Ohio’s efforts
to shut down a theatre showing pornographic films through a pending
civil action in state court because the proceeding was “in aid of
and closely related to [the State’s] criminal statutes”).
Supreme

Court

has

also

held

that
6

Younger

applies

to

The
state

administrative

proceedings

if

“important

state

interests

are

vindicated, so long as in the course of these proceedings the
federal plaintiff would have a full and fair opportunity to
litigate his constitutional claim.”

Ohio Civil Rights Comm’n v.

Dayton Christian Sch., Inc. 477 U.S. 619, 627 (1976)(holding that
the district court erred in failing to apply Younger abstention to
a

complaint

seeing

to

enjoin

a

pending

state

administrative

proceeding involving gender-based employment discrimination); see
also

Middlesex

County

Ethics

Committee

v.

Garden

State

Bar

Association, 457 U.S. 423 (1982)(affirming the denial of a federal
injunction against state bar disciplinary proceedings based, in
part,

on

the

close

relationship

between

lawyer

disciplinary

proceedings and the supervisory role played by the state courts).
In New Orleans Public Service, Inc. v. Council of City of New
Orleans, 491 U.S. 350, 368 (1989)(“NOPSI”), the Supreme Court
clarified the categories of proceedings to which the Younger
abstention doctrine applies:
state

civil

proceedings,

(1) state criminal proceedings, (2)

and

(3)

civil

proceedings

involving

certain orders uniquely in furtherance of the state court’s ability
to perform their judicial functions.
confirmed

that

Younger

applies

to

Recently, the Supreme Court
the

categories

of

cases

identified in NOPSI, but, citing Middlesex, Huffman, and Dayton
Christian

Schools,

also

clarified

that

the

second

category

involves state enforcement actions that are “akin to criminal
7

prosecutions” in “important respects.”
Inc.

v.

Jacobs,

134

S.Ct.

584

Sprint Communications,

(2013).

These

enforcement

proceedings are “characteristically initiated to sanction the
federal plaintiff, i.e., the party challenging the state action,
for some wrongful act.”

Id.

The Court found this to be true in

Middlesex and Dayton, but not in Sprint, which involved an Iowa
Utility Board proceeding regarding whether Iowa could regulate
Voice over Internet Protocol (VoIP) calls, because the proceeding
was initiated by a private corporation and no state entity was
seeking to sanction Spring for wrongful conduct.

Id.

Doe argues that the student disciplinary proceeding he is
subject to is not one the three types of “state proceedings” that
invoke

Younger.

The

Court

disagrees.

Like

the

state

bar

disciplinary hearing in Middlesex and the state-initiated civil
rights commission hearing in Dayton Christian Schools, the UK
disciplinary
prosecution
Supreme

hearing
and

Court

involving

resembles

has

found

the

Doe
state

appropriate

is

akin

to

enforcement
for

Younger

a

criminal

actions

the

abstention.

Furthermore, the Sixth Circuit has held that “if a state proceeding
is pending at the time the action is filed in federal court, the
first criteria for Younger abstention is satisfied.” Fed. Express
Corp. v. Tenn. Pub. Serv. Comm'n, 925 F.2d 962, 969 (6th Cir.1991)
(citation omitted).

8

UK, an arm of the Commonwealth of Kentucky, initiated the
investigation and enforcement action against Doe, and there are
many procedures incorporated into the UK disciplinary system that
are akin to a criminal prosecution.

As discussed above, upon

notice of an allegation of sexual misconduct by a student, the OSC
conducts an investigation and, if the allegations are supported by
reasonable suspicion, initiates a disciplinary proceeding.

The

accused receives notice of the charges, a hearing before an
independent fact-finding panel, the assistance of an attorney or
advisor,

the

opportunity

to

cross-examine

witnesses,

the

opportunity to call witnesses and present relevant evidence to
advocate a defense.

If the student is found to be in violation of

the Code of Student Conduct, he or she is subject to sanctions,
including

suspension

or

expulsion

from

the

University,

permitted an appeal to an independent tribunal.

and

Although not

addressed by the Sixth Circuit, the Ninth Circuit has held that
where legal representation at a hearing is present and tangible
sanctions may be imposed, the adjudicatory hearing is both “quasijudicial” and “quasi-criminal” and that Younger applies.

See

Baffert v. Cal. Horse Racing Bd., 332 F.3d 613, 616-18 (9th Cir.
2003).
Continuing in the analysis, there can be no doubt that the
second factor, whether the “proceedings implicate important state
interests,” is met.

The University has an immense and vital
9

interest
campus.

in

eliminating

prohibited

sexual

misconduct

on

its

The University also has an immense and vital interest in

establishing a fair and just disciplinary system to administer the
Code of Student Conduct that applies to its students to prevent
such conduct.
The

third

element

under

Younger

requires

the

Court

to

determine whether Doe is afforded an adequate opportunity to raise
his

constitutional

challenges

Middlesex, 457 U.S. at 435.

in

the

University

proceeding.

According to the University policy,

following the third hearing, Doe has the option of appealing his
decision to an appeals board (either the UAB or the “Sexual
Misconduct
challenges.

Appeals

Board”)

to

present

any

constitutional

Therefore, we find the third element of Younger is

met.
Having determined that the three requirements for Younger
abstention are met, the Court must abstain unless Doe can show
that one of the limited exceptions to Younger applies, that is,
the disciplinary proceeding was brought in bad faith or with the
purpose of harassment or that the underlying statute or policy is
flagrantly unconstitutional.
(6th Cir. 1996).

Fieger v. Thomas, 74 F.3d 740, 750

Doe argues that bad faith, harassment and

flagrant unconstitutionality are all present here, and therefore,
this Court may not abstain under Younger.

10

The

Court

finds

that

Doe

has

put

forth

no

evidence

to

demonstrate bad faith or harassment by Defendants other than bare
assertions that the University is using Doe as an example.

As

stated above, when a complaint was lodged in the OSC alleging that
Doe had engaged in sexual misconduct, Defendants were required by
federal law to investigate the allegations made against Doe, and
furthermore, upon concluding that the allegations were supported
by reasonable suspicion, to initiate a hearing proceeding against
Doe.

Moreover, Doe’s argument that UK’s sexual misconduct policy

is flagrantly unconstitutional because it does not define “too
intoxicated” and fails to consider an accused mens rea and mistaken
belief as to another’s capacity to consent is insufficient to
invoke an exception under Younger. Younger and its companion cases
requires the statute to be “flagrantly and patently violative of
express constitutional prohibitions in every clause, sentence and
paragraph, and in whatever manner and against whomever an effort
might be made to apply it.”

Younger v. Harris, 401 U.S. 37, 53-

54 (1971)(citing Watson v. Buck, 313 U.S. 387, 402 (1941)).

We

find that the Sexual Misconduct Policy at issue does not fall
within this narrow exception to the Younger doctrine.
In summary, Younger abstention is a means by which the federal
courts, as a matter of comity, refrain from acting so as not to
“unduly interfere with the legitimate activities of the States.”
Id. at 44. Here, the Court finds that all requirements for Younger
11

abstention are met in this case, and that Plaintiff has not shown
that any of the exceptions apply.

Under our system of judicial

federalism, it would be inappropriate for the Court to interfere
with the University’s disciplinary system, and, therefore, the
Court will dismiss Doe’s claims for equitable relief without
prejudice.

Nimer v. Litchfield Twp. Bd. of Trustees, 707 F.3d

699, 702 (6th Cir. 2013); Meyers v. Franklin Cty. Court of Common
Pleas, 23 F. App'x 201, 205-06 (6th Cir. 2001).
With respect to Doe’s remaining claims for monetary relief
against

Defendant

Simpson3

in

her

individual

capacity,

the

appropriate action based on Younger abstention is to stay rather
than

dismiss

these

claims.

Meyers,

23

F.

App'x

at

205-06.

However, because the Court finds that Defendant Simpson is entitled
to qualified immunity as raised in Defendants’ Motion to Dismiss,
the claims asserted against Simpson in her individual capacity
will be dismissed with prejudice. Immunity questions are to be
resolved at the earliest possible stage in litigation.

Pearson v.

Callahan, 555 U.S. 223, 231 (2009).
Generally,

government

officials

performing

discretionary

functions are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have

3

Simpson was the Director of the Office of Student Conduct at the University
at the time of the incident between Doe and Student A, and, as the Court
understands, continues in that role.

12

known. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified
immunity balances two important interests—the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.”

Pearson,

555 U.S. at 231.
In determining whether an official is entitled to qualified
immunity, the Court must engage in a two-part analysis.

Id.

The

first prong requires the Court to determine whether the facts that
the plaintiff has alleged make out a violation of a constitutional
right.

Id.

whether

the

The second prong requires the Court to determine
constitutional

right

at

issue

was

“clearly

established” at the time of the defendant’s alleged misconduct.
Id.

For the right to be “clearly established,” it “must be

sufficiently clear that a reasonable official would understand
that what he is doing violates that right,” or in other words,
“the unlawfulness must be apparent” in light of “pre-existing law.”
Anderson v. Creighton, 483 U.S. 635, 640 (1987); see also Feathers
v. Aey, 319 F.3d 843, 848 (6th Cir. 2003).

In determining whether

a constitutional right is clearly establish, the Court must “‘look
first to decisions of the Supreme Court, then to decisions of this
court and other courts within our circuit, and finally to decisions
of other circuits.’”

Lyons v. City of Xenia, 417 F.3d 565, 579

(6th Cir. 2005)(quoting Daugherty v. Campbell, 935 F.2d 780, 784
13

(6th Cir. 1991)).

The plaintiff bears the burden of showing that

a defendant is not entitled to qualified immunity, O’Malley v.
Flint, 652 F.3d 662, 667 (6th Cir. 2011), and the Court may
consider the prongs of the two-part test in any order. Pearson,
555 U.S. at 236.
Doe asserts that Simpson violated his constitutional rights
by not deferring to the first Hearing Panel with respect to whether
certain information and questions were relevant, by deciding to
use the screening partitions rather than allowing the second
Hearing Panel to make that determination, and by engaging in ex
parte communications with the second Hearing Panel and Student A.
Assuming Doe has alleged conduct on the part of Simpson that
violated his due process rights, Doe, who bears the burden of
proving that Simpson is not entitled to qualified immunity, has
not identified any binding law that “squarely governs” the case in
terms of the constitutionality of the alleged conduct.

Brosseau

v. Haugen, 543 U.S. 194, 201 (2004); see also Lyons v. City of
Xenia, 417 F.3d 565, 579 (6th Cir. 2005).

The Court also finds no

binding case law that any of Simpson’s alleged conduct violated a
clearly established constitutional right.

For this reason, the

Court finds that Doe has not met his burden regarding qualified
immunity, that is, that a reasonable official in Simpson’s position
at the time of the events in question would have had fair warning
that their conduct was unconstitutional.
14

Federal law defines the requirements of due process, not
state law, therefore, an alleged violation of the University’s
procedures does not, in and of itself, implicate denial of due
process.

Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541

(1985); JiQiang Xu v. Michigan State Univ., 195 F. App'x 452, 457
(6th Cir. 2006). Nevertheless, and most importantly, even if
Plaintiff

had

established

adequately

right,

alleged

Simpson’s

a

violation

alleged

due

of

process

a

clearly

errors

are

corrected by the new procedures and process that UK has put in
place for Doe’s third hearing.

For these reasons, the Court finds

that Defendant Simpson is entitled to qualified immunity and that
the legal claims asserted against her must be dismissed with
prejudice.
III.
Accordingly, for all of the reasons stated above, it is
ORDERED,
(1)

That Defendants’ Motion for Abstention [DE 26] is

GRANTED;
(2)

That Plaintiff’s Motion for Preliminary Injunction [DE

3] and Supplemental Motion for Preliminary Injunction [DE 15] are
DENIED, and DISMISSED WITHOUT PREJUDICE;
(3)

That Defendants’ Motion to Dismiss [DE 25] is GRANTED

15

IN

PART

with

respect

to

Plaintiff’s

monetary

claims

against

Defendant Simpson and DENIED AS MOOT IN PART with respect to
Plaintiff’s claims for equitable relief;
(4)

That Plaintiff’s claims for monetary relief against

Defendant Simpson are DISMISSED WITH PREJUDICE;
(5)

That Plaintiff’s Motion to Consolidate Cases [DE 37] is

DENIED AS MOOT; and
(6)

This action is STRICKEN from the active docket of this

Court.
This the 15th day of January, 2016.

16