Herrell v. Benson, et al

Filing 12

MEMORANDUM OPINION & ORDER: Defendants' 6 MOTION to Dismiss for failure to state a claim is GRANTED and Herrell's amended complaint (DE 1-7) is DISMISSED. Clerk SHALL STRIKE this case from the Court's active docket. A separate judgment will issue. Signed by Judge Karen K. Caldwell on 6/12/2017.(STC)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
ZACHARY HERRELL,

CIVIL ACTION NO. 5:16-cv-155-KKC

Plaintiff,
V.

MEMORANDUM OPINION & ORDER

MICHAEL T. BENSON, in his official
capacity as President of Eastern
Kentucky University, and JOSLYN
GLOVER, in her official capacity as
Title IX Coordinator of Eastern
Kentucky University,
Defendants.

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Eastern Kentucky University expelled Zachary Herrell after its Office of Equity and
Inclusion determined that Herrell committed sexual misconduct in violation of the
University’s Non-Discrimination and Harassment Policy. Herrell did not participate in the
investigation or the sanctioning phase of the proceedings. Herrell now seeks to enjoin the
University’s sanctions hearing and to compel defendant President Michael T. Benson, the
president of the University, to make a recommendation to the EKU Board of Regents to issue
to Herrell his degree, which EKU has not conferred as a result of his expulsion. This refusal,
in Herrell’s view, violates his due process rights under the Fourteenth Amendment. The
defendants, President Benson and Joslyn Glover, EKU’s Title IX Coordinator, have moved
pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Herrell’s complaint. Because
Herrell’s first claim is moot and the second claim fails as a matter of law, Herrell’s complaint
will be dismissed and the defendants’ motion to dismiss (DE 6) will be granted.
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I. BACKGROUND
In August 2010, Zachary Herrell enrolled as a freshman at Eastern Kentucky
University, a public institution in Richmond, Kentucky. (Am. Compl. ¶ 5). On April 20, 2015,
shortly before he was set to graduate with a Bachelor of Business Administration in
Marketing degree, Herrell was accused of having non-consensual sexual intercourse with
another student at an off-campus student housing complex. (Am. Compl. ¶¶ 7–8). Law
enforcement arrested and charged Herrell with rape and attempted sodomy the same day.
(Am. Compl. ¶ 11). On June, 12 2015, a Madison County grand jury indicted Herrell on rape
and sodomy charges. (Am. Compl. ¶ 13).
EKU instituted its own investigation of the incident after the University received a
complaint from the student with whom Herrell had allegedly had non-consensual sexual
intercourse. The student accused Herrell of violating the University’s Non-Discrimination
and Harassment Policy, and EKU’s Office of Equity and Inclusion (OEI) launched an
investigation in order to determine whether Herrell committed sexual misconduct in
violation of the Policy. Herrell was notified of the OEI investigation, but chose not to
participate in the investigative process over a concern that “any participation in the
[University] investigation would lead to the violation of his [Fifth Amendment rights]” in a
pending criminal investigation. (Am. Compl. ¶¶ 13 –14). The OEI investigation continued
despite Herrell’s nonparticipation.
After a two-month investigation, the OEI found Herrell to have violated the sexual
misconduct provision of the University’s Non-Discrimination and Harassment Policy and
issued an Investigative Reporting finding. EKU notified Herrell of the finding on June 25,
2015, and, as the Policy required, gave Herrell with ten days in which to provide the OEI
with any additional information before EKU officially closed the investigation. Herrell did
not provide any information to the OEI. The finding of a violation became final and non2

appealable after the ten-day window expired. EKU then notified Herrell on July 10, 2015,
that a sanctions hearing would be held on July 27, 2015, to determine Herrell’s standing as
a student at EKU. Herrell again refused to participate, citing concerns over his rights against
self-incrimination. (Am. Compl. 14).
In an attempt to delay the sanctions hearing while he litigated his pending criminal
charges, Herrell filed a complaint against EKU, along with a motion seeking to stay the
Sanctions Hearing, on June 21, 2015, in Madison County Circuit Court. EKU postponed the
Sanctions Hearing in light of the motion, but the state court did not set the motion for a
hearing or otherwise rule on it. EKU then filed a motion to dismiss the state court action, to
which Herrell responded with a motion to amend his complaint to add Michael Benson,
EKU’s President, and Joslyn Glover, EKU’s Title IX Coordinator—both in their official
capacities—to the suit. All parties tendered an agreed motion to the state court to allow
Herrell to pursue injunctive relief to (1) stay the sanctions hearing and (2) compel President
Benson to make a recommendation to the EKU Board of Regents so as to require the Board
of Regents to issue to Herrell his degree, which EKU had refused to confer due to the OEI
investigation. The state court did not enter the agreed order or take any other action on the
case.
Having previously postponed the sanction hearing and seeing no action from the state
court, EKU decided to move forward with the disciplinary process and notified Herrell that
a sanction hearing would be held on September 30, 2015, at 3:30 p.m. Herrell again
attempted to stop the sanctions hearing. On September 28, 2015, two days before the hearing,
Herrell filed a proposed order on his previously pending ex parte motion for injunctive relief
in state court. Once again, the state court never scheduled the matter for a hearing and it
never entered an order to stay the sanctions hearing.

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The Equity Complaint Council convened on September 30, 2015, without Herrell in
attendance. The Council expelled Herrell from EKU, evicted him from University housing,
and permanently barred him from EKU’s campus. Herrell did not appeal the sanctions
decision of the Equity Complaint Council. Although Herrell has completed all of the academic
requirements to obtain his degree, the University has not awarded a degree to him. (Am.
Compl. ¶ 6).
After laying dormant for more than seven months, the agreed order proposed by
Herrell and EKU was entered by Madison County Circuit Court on May 5, 2016. The order
(1) dismissed EKU from the suit; (2) dismissed Herrell’s state law claims and request for
monetary relief; and (3) allowed Herrell to amend his complaint to include Glover and Dr.
Benson in their official capacities as plaintiffs in his claims for injunctive relief under federal
law. On May 23, 2016, Dr. Benson and Glover removed the matter to federal court and now
seek to dismiss Herrell’s amended complaint.
II. DISCUSSION
The defendants’ motion is governed by Rule 12(b)(6). That rule provides courts with a
mechanism to enforce Rule 8, which governs the sufficiency of a complaint. In determining
whether a plaintiff’s complaint can withstand a motion to dismiss, the Court will assume the
veracity of well-pleaded factual allegations and then determine whether they plausibly give
rise to an entitlement to relief. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). As amended,
Herrell’s complaint asserts two claims: (1) a “request[] that the Defendant[s]’ Disciplinary
Process be stayed and held in abeyance until such time that the criminal charges are
complete” so as to prevent a “potential violation of his right to self-incrimination during the
process”; and (2) that the Defendants be enjoined from denying him his diploma in which he
has a protected property interest under the Due Process Clause of the Fourteenth

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Amendment. Rule 12(b)(6) fells both claims because they are claims upon which no relief can
be granted.
A.
The Court cannot grant the relief Herrell requests in Count I because the issue was
moot before the case was removed to federal court.
“It has long been settled that a federal court has no authority to ‘give opinions upon
moot questions or abstract propositions, or to declare principles or rules of law which cannot
affect the matter in issue in the case before it.’ ” Church of Scientology, 506 U.S. at 12 (quoting
Mills v. Green, 159 U.S. 651, 653 (1895)). To opine on the disciplinary process’s alleged
constitutional infirmities as they relate to the relief sought in Count I, but to nevertheless be
unable to provide the remedy Herrell seeks, would convert any ruling on the merits into a
purely advisory opinion. This is something the Court cannot do. Accordingly, insofar as
Herrell requests injunctive relief to stop EKU’s disciplinary process, that request is moot.
B.
Count II of the Amended Complaint seeks a permanent injunction compelling Dr.
Benson, the President of EKU, to recommend that the EKU Board of Regents confer upon
Herrell a degree of Bachelor of Business Administration in Marketing, which Herrell argues
is rightfully his. Herrell contends that this failure to confer his degree violates his due process
rights. (DE 10, at 4) (“The second issue is the failure of Eastern Kentucky University to confer
his earned degree without providing any process for what ever [sic] on the issue.”).
In general, the standard for granting a permanent injunction is “essentially the same”
as that for a preliminary injunction, except that a plaintiff must demonstrate actual success
on the merits rather than likelihood of success. Amoco Prod. Co. v. Village of Gambell, 480
U.S. 531, 546 n.12 (1987). A plaintiff seeking a permanent injunction must demonstrate that
he or she has suffered irreparable injury, there is no adequate remedy at law, “that,
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considering the balance of hardships between the plaintiff and defendant, a remedy in equity
is warranted,” and that it is in the public’s interest to issue the injunction. eBay Inc. v.
MercExchange, LLC, 547 U.S. 388, 391 (2006). Herrell cannot, however, demonstrate that
his constitutional right to due process of law has been violated, and he does not state a claim
upon which relief can be granted. Therefore, his request for a permanent injunction must be
denied.
Herrell proceeds under the theory that EKU violated his procedural due process rights
when it refused to confer his degree.1 Determining whether the defendants violated Herrell’s
due process rights requires a two-step inquiry. The Court must first determine whether the
interest at stake is a protected liberty or property interest under the Fourteenth Amendment.
Puckett v. Lexington–Fayette Urban County Gov’t, 833 F.3d 590, 604–05 (6th Cir. 2016)
(citations omitted). “Only after identifying such a right will a court consider whether the
deprivation of that interest contravened the notions of due process” under the Fourteenth
Amendment.” Id. (quoting Wojcik v. City of Romulus, 257 F.3d 600, 609 (2001)).
Property interests themselves are not created by the Constitution. Id. at 605. Instead,
they “are created and their dimensions are defined by existing rules or understandings that
stem from an independent source such as state law—rules or understandings that secure
certain benefits and that support claims of entitlement to those benefits.” Bd. of Regents of
State Colleges v. Roth, 408 U.S. 564, 577 (1972); Ziss Bros. Constr. Co., v. City of
Independence, 439 F. App’x 467, 471 (6th Cir. 2011).

The defendants’ motion to dismiss addresses both substantive due process and procedural due process, likely
because it is unclear from the complaint upon which due process theory Herrell proceeds. In Herrell’s response,
all of his arguments sound in procedural due process, save for a fleeting reference to Crook v. Baker, 813 F.3d 88
(6th Cir. 1987), followed by a reference to that fact that “[t]he same analysis can be used in the Plaintiff’s case.”
(DE 10, at 9). The Court need not address such an underdeveloped argument. See McPherson v. Kelsey, 125 F.3d
989, 995–96 (6th Cir. 1997) (“Issues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in
the most skeletal way, leaving the court to put flesh on its bones.”).
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The defendants argue that Herrell has not identified any property interest in a college
degree that is protected by the Due Process Clause. Indeed, “[t]he issue of whether a student’s
interest in continued enrollment at a post-secondary institution is protected has not been
resolved.” McGee v. Schoolcraft Community College, 167 F. App’x 429, 437 (6th Cir. 2006).
However, the Sixth Circuit has plainly held “that the Due Process Clause is implicated by
higher education disciplinary decisions.” Flaim v. Med. College of Ohio, 418 F.3d 629, 633
(6th Cir. 2005); see also Doe v. Cummins, 662 F. App’x 437, 445 (6th Cir. 2016) (“We have
recognized that these [due process] protections apply to higher education disciplinary
decisions.”). While there may be room for debate, “[c]ourts have avoided this issue where
possible by assuming for the sake of argument that such an interest exists.” McGee, 167 F.
App’x 429, 437. That practice is well-suited here. Therefore, for the purposes of this analysis,
Herrell’s interest in preserving his right to his degree against the claimed violations of EKU’s
sexual misconduct policy qualifies for procedural due process protection.
Still, the next question remains: what process is due? See Morrissey v. Brewer, 408
U.S. 471, 481 (1972). At its core, procedural due process requires “notice and an opportunity
to be heard at a meaningful time and in a meaningful manner.” Garcia v. Fed. Nat’l Mortg.
Ass’n, 782 F.3d 736, 741 (6th Cir. 2015) (internal quotations and citations omitted). In
disciplinary expulsion cases, “[t]he hearing, whether formal, or informal, live or not, must be
meaningful and must provide the accused with the opportunity to respond, explain, and
defend.” Flaim, 418 F.3d at 635-37 (quotations and citations omitted).
In his response to the defendants’ motion to dismiss, Herrell claims he was deprived
of due process in two ways. First, he claims that “because he could not participate in the
disciplinary proceedings due to his criminal indictment, he was denied due process.” (DE 10,

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at 4). Second, Herrell argues that EKU offered him no recourse to challenge the University’s
decision to withhold his degree, which, he contends, creates a separate due process violation.
In examining these arguments, a more foundational issue becomes apparent. Herrell
did not participate in any aspect of the disciplinary process, including the sanctions hearing,
and did not exercise his right to appeal the sanctions imposed against him. By failing to
participate in the process afforded to him by EKU, Herrell has waived any constitutional
challenge to the process that resulted in his expulsion and the non-conferment of his degree.
E.g., United States v. Doxey, 833 F.3d 692, 702 (6th Cir. 2016) (“[W]aiver is the intentional
relinquishment or abandonment of a known right.”); Conn v. Deskins, ___ F. Supp. 3d ___,
2017 WL 1712532, at *6 (E.D. Ky. March 1, 2017) (finding that a plaintiff waived a procedural
due process claim after not participating in post-termination process). This alone ends this
case.
After a two-month investigation, EKU’s OEI issued an Investigative Report finding
Herrell to have violated the sexual misconduct policy. EKU notified Herrell of the findings
and provided him with ten days to provide the OEI with additional information. Herrell did
not provide any information or appeal within the ten-day window. The violation then became
final and non-appealable. After a month’s delay—to accommodate Herrell’s efforts in state
court—EKU conducted the sanctions hearing on September 30, 2015. Herrell did not show
up, nor did he appeal the sanctions decision as was allowed. None of this is disputed. Instead,
Herrell argues is that “he could not participate in the disciplinary process” because of his
pending criminal case. (DE 10, at 4). Herrell could have participated, but elected against it.
Such a tactical decision may have had its benefits, but the decision to forego the disciplinary
proceedings dooms Herrell’s constitutional challenge here.
EKU delayed the sanctions hearing for over a month in light of Herrell’s legal attempt
to stop it. Procedural due process claims do not focus on the end result or the egregiousness
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of the deprivation itself, but only on whether the proceedings deprived a party of
constitutionally sufficient process. See Howard v. Grinage, 82 F.3d 1343, 1350 (6th Cir. 1996).
Herrell was afforded due process, but waived his right to it by refusing to participate in the
process offered to him. See Farhat v. Jopke, 370 F.3d 580, 596–97 (6th Cir. 2004); Leary v.
Daeschner, 228 F.3d 729, 744 (6th Cir. 2000); see also Santana v. City of Tulsa, 359 F.3d 1241,
1244 (10th Cir. 2004) (“A party cannot create a due process claim by ignoring established
procedures.”).2
Herrell argues that he “never received [a] written notice that he was not to be
recommended to the Board of Regents for his degree” and such a refusal constitutes a
violation of due process. (DE 10, at 7–8). Essentially, Herrell attempts to create a
constitutionally significant distinction between the disciplinary process and the decision
made by Dr. Benson not to recommend him for conferral of a degree to the Board of Regents.
This theory is unavailing in several respects. First, even if Kentucky law did establish a
separate procedure to challenge the decision of a university and EKU failed to follow it, that
in and of itself would not constitute a violation of due process. State law may establish one’s
entitlement to a property right, but it does not define the parameters of what is or is not a
constitutional violation. See Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 570 (6th Cir.
2011); Cummins, 662 F. App’x at 445 n. 2.
Better understood, however, Herrell’s argument stretches the protection offered by
procedural due process too far. What process is due is more malleable a concept than his
theory credits. In arguing that that he received no process with regard to the University’s
decision to withhold his degree, Herrell ignores the fact that, as he himself says, “the
disciplinary hearing and the failure to recommend are clearly intertwined.” (DE 10, at 7).

To the extent Herrell’s claim from Count I survives a mootness challenge, it too is waived for the same reasons
offered above.
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Indeed, even Herrell admits that “[t]he imposed disciplinary sanctions led to the denial of the
recommendation of the degree to the Board of [Regents].” (DE 10, at 7). Therefore, it is simply
not the case that Herrell “had no way to contest the decision . . . .” (DE 10, at 7). To start,
Herrell’s original complaint filed in state court directly acknowledged the he knew his degree
was on the line in the disciplinary process. (See DE 1-1, Compl. ¶ 23) (“To continue the
process which could end in [EKU] denying [Herrell] a rightfully earned degree would violate
[his] rights under the State and Federal Constitution.”). Specifically, EKU’s policy provided
Herrell with the opportunity to challenge all of the factual allegations against him and, more
to the point, afforded him the opportunity to attend the sanctions hearing and to appeal any
sanction rendered. (See DE 6-3, Response to Non-Discrimination and Harassment
regulation).3
Sure, the decision not to confer his degree came after Herrell was expelled. But aside
from the delay in time, the Court fails to see any meaningful distinction between the
disciplinary process—the process Herrell received—and the decision not to confer—the
process Herrell wants. The latter is just the fall-out from the process in which he chose not
to participate. This is not a situation where EKU irrationally decided to hold Herrell’s degree
for no reason. Such a situation would perhaps demand additional protection because
presumably a disciplinary process would not have been initiated. See Garcia, 782 F.3d at 741
(“[T]he Due Process Clause is flexible and calls for such procedural protections as the
particular situation demands.”). In this case, Herrell received all the process he was due
because the disciplinary process and the non-conferral are inextricably linked for the
purposes of a due process challenge. Herrell did not avail himself of the opportunity to
challenge the very sanction that resulted in the non-conferral of his degree. Just as ballplayer

That same policy also provided further notice that EKU would place a hold on a degree when disciplinary
proceedings were pending. (DE 6-3, Response to Non-Discrimination and Harassment regulation).
3

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who watches three strikes go over the plate does not get an additional fourth strike before
striking out, Herrell cannot make out a claim for a due process violation by requiring that
EKU provide an additional protection to the disciplinary process while at the same time
overlooking the fact that he chose to watch the very process that led to the decision not to
confer his degree go by unchallenged.
Accordingly, Herrell does not state a viable claim for the denial of procedural due
process. Because Herrell has not succeeded on the merits of his procedural due process claim,
the Court will not address the three additional factors to establish the need for a permanent
injunction. In the final analysis, therefore, the Court will not order EKU’s President Dr.
Benson to recommend that Herrell receive his degree.
III. CONCLUSION
For the reasons previously explained, Herrell has failed to state a claim upon which
relief can be granted. His claims are either moot or fail as a matter of law. IT IS HEREBY
ORDERED that the defendants’ motion to dismiss (DE 6) is GRANTED and that Herrell’s
amended complaint (DE 1-7) is DISMISSED. The Clerk of Court SHALL STRIKE this case
from the Court’s active docket. A separate judgment will issue.

Dated June 12, 2017.

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