Peloe v. University Of Cincinnati et al
Filing
49
ORDER Granting Defendants Motion to Dismiss (Doc. 9); Defendants Motion to Strike the Affidavit of Paul Moke (Doc. 27) is GRANTED, Plaintiffs Motion for Leave to File Second Amended Complaint (Doc. 16) is DENIED, and Plaintiffs Motion for Leave to File Supplemental Memorandum in Opposition to Motion to Dismiss (Doc. 46) is DENIED. The Court dismisses Plaintiffs claims without prejudice.. Signed by Judge Susan J. Dlott. (wam1)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Ethan Peloe,
Plaintiff,
v.
University of Cincinnati, et al.,
Defendants.
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Case No. 1:14-cv-404
Judge Susan J. Dlott
Order Granting Defendants’ Motion to
Dismiss and Motion to Strike and
Denying Plaintiff’s Motions for Leave
Plaintiff Ethan Peloe filed this suit against Defendants University of Cincinnati and
Daniel Cummins alleging that they denied him due process in disciplinary proceedings taken
against him on charges of sexual misconduct. Pending before the Court are Defendants’ Motion
to Dismiss (Doc. 9), Plaintiff’s Motion for Leave to File Second Amended Complaint (Doc. 16),
Defendants’ Motion to Strike the Affidavit of Paul Moke (Doc. 27), and Plaintiff’s Motion for
Leave to File Supplemental Memorandum in Opposition to Motion to Dismiss (Doc. 46).
For the reasons that follow, the Court will GRANT Defendants’ Motions and DENY
Plaintiff’s Motions.
I.
BACKGROUND
The background facts are primarily taken from the well-pleaded allegations stated in the
Amended Complaint (Doc. 3).
A.
The Parties and the University Code of Conduct
Ethan Peloe is a student at Defendant University of Cincinnati (“UC” or “the
University”), a public university in Ohio. (Doc. 3 at PageID 109.) Defendant Daniel Cummins
is the Assistant Dean of Students and the Director of the Office of University Judicial Affairs
(“Judicial Affairs Office”) for the University. Peloe is suing Cummins in his personal and
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official capacities. (Id.) Defendants Jane Doe #1 and Jane Doe #2 are students at the University.
Peloe is not asserting claims against Jane Doe #1 or Jane Doe #2, but has named them as
defendants because they may have an interest in this matter. (Id. at PageID 110.)
The University has a Student Code of Conduct (Doc. 9-1), which is set forth in the Ohio
Revised Code § 3361:40-5-05. The Code of Conduct at subsections (C)(4) and (D) sets forth
disciplinary procedures for when a student is charged with nonacademic misconduct. (Doc. 9-1
at PageID 171, 184.) Incidents of nonacademic misconduct are to be reported to the Judicial
Affairs Office. (Id. at PageID 151, 164.) There are four levels of procedures if the University
intends to impose discipline against the student for the misconduct.
First, after a complaint is filed against a student with the Judicial Affairs Office, the
student receives written notice of the allegations, the rights to a procedural review, and the
possible sanctions. (Id. at PageID 171–72.) The student can admit responsibility or deny
responsibility and request a hearing before an administrative review committee (“ARC”) panel.
(Id. at PageID 172.) An ARC panel consists of a hearing chair, two faculty or staff members,
and four undergraduate student representatives. (Id. at PageID 173.) ARC hearing procedures
allow for witness testimony and notarized statements. (Id. at PageID 175.) The accused student
and the complainant can submit evidence and written questions to be asked of the adverse
witnesses. The hearing chair determines which written questions will be asked. (Id. at PageID
176.) Both sides can present closing statements. (Id.) The ARC panel then makes a
recommendation to the dean of students within three days of the hearing. (Id.)
The ARC panel’s recommendation is not final. In step two, the dean of students can
concur in the decision, modify the sanction, or send the issue back to the ARC panel for further
review and recommendation. (Id. at PageID 177.) The dean of students provides written notice
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of his or her decision to the parties within three days of receipt of the ARC panel’s
recommendation. (Id. at PageID 176–77.) The accused student then has five days to appeal the
sanction, if any. (Id. at PageID 177, 182.) The sanction takes effect only if the student does not
timely appeal the decision of the dean of students. (Id. at PageID 177.)
Step three is the appeal of the dean of student’s decision to the appeals administrator.
There are three permissible grounds for appeal: (1) new information is discovered; (2) “[a]
substantial procedural error occurred in the process, which affected the decision in the case;” or
(3) the sanctions imposed were not commensurate with the violation. (Id. at PageID 183.) If the
appeals administrator determines that new information is available or that substantial procedural
error occurred, the appeals administrator can remand the decision to the ARC panel to consider
the new information or to correct the procedural error. (Id.) The appeals administrator will
again review the ARC panel recommendation after a remand. (Id. at PageID 184.) If the
procedural error has been corrected, the appeals administrator will forward the recommendation
to the appropriate dean.
In step four, the appropriate dean or vice president shall “accept, reject or modify the
recommended sanction and notify all parties in writing of the final decision.” (Id. at PageID
185.) The vice president for student affairs and services makes the final decision for
nonacademic misconduct sanctions of dismissal. Importantly, during an appeal of the
recommendation “[t]he student can continue in his/her courses without prejudice or interruption
until the appeal is final.” (Id. at PageID 185.)
B.
Charges and Disciplinary Proceedings against Peloe
Peloe was accused of raping Jane Doe #1 and Jane Doe #2 on or about March 9, 2014.
(Doc. 3 at PageID 112.) Peloe has denied the accusations of rape. (Id. at PageID 113.) Jane
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Doe #1 and Jane Doe #2 undertook rape kit testing following the alleged rapes. (Id. at PageID
114.) The results of the rape kits tests have not been made available to Peloe. (Id.) The
accusations against Peloe were presented to a grand jury in Hamilton County, Ohio, but the
grand jury declined to issue an indictment. (Id. at PageID 113.) The accusations also were
investigated by the UC Police. (Id.)
The University proceeded with disciplinary charges against Peloe for a violation of the
University’s Student Code of Conduct. Cummins sent an initial letter to Peloe on March 12,
2014 describing the allegations, and then Cummins met with Peloe on March 28, 2014. (Doc. 3
at PageID 115; Doc. 16-1 at PageID 376.) Pursuant to the Code of Conduct, Cummins
scheduled an ARC panel to review the charges against Peloe and determine whether discipline
was appropriate. (Doc. 3 at PageID 115.) The ARC hearing was originally set for April 10,
2014, but it was postponed until May 2, 2014. (Id. at PageID 116.) Cummins interviewed
witnesses on April 10, 11, and 14, 2014 in preparation for the hearing. (Id. at PageID 115.)
Peloe alleges that his due process rights were violated during the ARC hearing in
multiple ways, only some of which will be listed here. Cummins did not permit Peloe to record
the ARC hearing. Peloe was not permitted to present any evidence at the hearing other than his
statement. He sought without success to present surveillance video of himself, Jane Doe #1, and
Jane Doe #2 entering the girls’ dormitory together on the night of the incident, the results of the
investigation by the University Police, text messages sent to and from Jane Doe #1 and Jane Doe
#2, and the results of the rape kit analysis. (Id. at PageID 116–19.) Peloe alleges upon
information and belief that Cummins orchestrated the actions of the ARC panel. (Id. at PageID
119.)
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The ARC panel determined that Peloe violated the Code of Conduct concerning the
sections on physical abuse or harm and harassment. (Doc. 28-1 at PageID 470.) Peloe
participated during the hearing concerning the charges of one student, but he left before the
hearing concerning the second student began because he believed he was being denied due
process. (Id.; Doc. 3 at PageID 119.) Both parties agree in their briefs that the ARC panel
recommended that Peloe be dismissed from UC, but Peloe did not make that specific factual
allegation in his Amended Complaint.
C.
Judicial Proceedings
Peloe initiated this suit against the University and Cummins only in the Hamilton County,
Ohio Court of Common Pleas on May 5, 2014 as Case No. A1402629. He sought declaratory
relief, damages, and an injunction prohibiting further disciplinary proceedings in a manner that
violates the Constitution. (Doc. 2 at 9–24.) Peloe moved for a temporary restraining order
(“TRO”) against UC and Cummins. (Doc. 1-5.) Judge Jerome Metz, Jr. of the Common Pleas
Court issued an Entry Granting Motion for TRO on May 7, 2014. (Doc. 1-15.) Judge Metz
enjoined the University from “continuing disciplinary actions or imposing further disciplinary
sanctions” against Peloe. (Id. at PageID 76.) The TRO was to remain in effect until May 29,
2014 pursuant to the terms of the Entry. (Id. at PageID 77.)
Peloe filed an Amended Complaint on May 15, 2014. (Doc. 3.) Peloe asserts three
claims for relief against UC and Cummins in the Amended Complaint: (1) declaratory
judgment—violations of the procedural due process provisions of the United States Constitution
and the Ohio Constitution; (2) damages for violations of civil rights pursuant to 42 U.S.C.
§ 1983; and (3) injunctive relief. (Id.)
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In his Amended Complaint, Peloe sues Cummins in his official capacity for declaratory
and injunctive relief and in his individual capacity for damages. (Id. at PageID 109.) “Suing a
public official in his official capacity for acts performed within the scope of his authority is
equivalent to suing the governmental entity.” Soper v. Hoben, 195 F.3d 845, 853 (6th Cir. 1999)
(citing Ky. v. Graham, 473 U.S. 159, 166 (1985)). Accordingly, the analysis of the claims
against the University subsumes the analysis of the claims against Cummins in his official
capacity.
On May 15, 2014, Defendants removed the case to the District Court for the Southern
District of Ohio. (Doc. 1.) On June 2, 2014, this Court issued an Order extending the TRO until
July 29, 2014 with the consent of the University. (Doc. 5.) Defendants filed the pending Motion
to Dismiss on June 16, 2014. (Doc. 9.) On July 17, 2014, the Court extended the TRO again
“until the Court either grants the [M]otion to [D]ismiss filed by the University of Cincinnati or
issues a decision on the Motion for Preliminary Injunction.” (Doc. 12 at PageID 192.)
Peloe opposes Defendants’ Motion to Dismiss. Peloe attached the Affidavit of Paul
Moke in support of his written Opposition to Motion to Dismiss. (Docs. 13, 13-1.) Peloe also
filed a Motion for Leave to File a Second Amended Complaint on July 25, 2014. (Doc. 16.)
Peloe seeks to reassert the claims for (1) declaratory judgment—violations of the due process
provisions of the United States and Ohio Constitutions, (2) damages for violations of civil rights
pursuant to 42 U.S.C. § 1983, and (3) injunctive relief. (Doc. 16-1 at PageID 387–390, 392–93.)
He seeks to add a claim against UC for violation of Title IX, 20 U.S.C. § 1681. (Doc. 16-1 at
PageID 390–92.) Defendants oppose the filing of a Second Amended Complaint. Defendants
also move to strike the Affidavit of Moke. (Doc. 27.) Finally, Peloe seeks leave to file a
supplemental memorandum opposing Defendants’ Motion to Dismiss. (Doc. 46.)
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II.
STANDARDS FOR ADJUDICATING RULE 12(B)(6) MOTIONS AND MOTIONS
FOR LEAVE TO AMEND
Federal Rule of Civil Procedure 12(b)(6) allows a party to move to dismiss a complaint
for “failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A
district court “must read all well-pleaded allegations of the complaint as true.” Weiner v. Klais
and Co., Inc., 108 F.3d 86, 88 (6th Cir. 1997). However, this tenet is inapplicable to legal
conclusions, or legal conclusions couched as factual allegations, which are not entitled to an
assumption of truth. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
A complaint must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a). To withstand a dismissal motion, a complaint
“does not need detailed factual allegations,” but it must contain “more than labels and
conclusions [or] a formulaic recitation of the elements of a cause of action.” Bell Atlantic Corp.
v. Twombly, 550 U.S. 544, 555 (2007). “[T]he complaint must contain either direct or inferential
allegations respecting all material elements to sustain a recovery under some viable legal
theory.” Harvard v. Wayne Cty., 436 F. App’x 451, 457 (6th Cir. 2011) (internal quotation and
citation omitted). “Factual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. The Court does not require “heightened fact
pleading of specifics, but only enough facts to state a claim for relief that is plausible on its
face.” Id. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678.
On a Rule 12(b)(6) motion, the court “may consider exhibits attached [to the complaint],
public records, items appearing in the record of the case and exhibits attached to defendant’s
motion to dismiss so long as they are referred to in the complaint and are central to the claims
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contained therein, without converting the motion to one for summary judgment.” Rondigo,
L.L.C. v. Twp. of Richmond, 641 F.3d 673, 681 (6th Cir. 2011) (internal quotation and citation
omitted).
Finally, a district court “should freely give leave [to amend a complaint] when justice so
requires.” Fed. R. Civ. P. 15(a)(2). The court may deny leave to amend where it appears that
doing so would be futile. Foman v. Davis, 371 U.S. 178, 182 (1962); see also Jet, Inc. v. Sewage
Aeration Syss., 165 F.3d 419, 425 (6th Cir. 1999).
III.
ANALYSIS
A.
Analysis of Procedural Due Process Claim Against the University of
Cincinnati
1.
Due Process Claims Generally
Peloe asserts materially similar due process claims against UC both in the Amended
Complaint and in the proposed Second Amended Complaint. Peloe asserts a claim for violation
of his procedural due process rights pursuant to 42 U.S.C. § 1983. To establish this claim
against Defendants, Peloe must plead facts sufficient to establish the following elements:
(1) that [he has] a life, liberty, or property interest protected by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution, (2) that
[he was] deprived of this protected interest within the meaning of the Due Process
Clause, and (3) that the state did not afford [him] adequate procedural rights prior
to depriving them of [his] protected interest.
Hahn v. Star Bank, 190 F.3d 708, 716 (6th Cir. 1999).
Defendants move to dismiss the procedural due process claims on the grounds that no due
process violation has occurred because Peloe terminated the disciplinary proceedings
prematurely. Although Defendants do not use this terminology relative to the due process
claims, the Court understands Defendants to be making the argument akin to a ripeness
argument. The ripeness doctrine “is drawn both from Article III limitations on judicial power
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and from prudential reasons for refusing to exercise jurisdiction.” Warshak v. U.S., 532 F.3d
521, 525 (6th Cir. 2008) (quoting Nat’l Park Hospitality Ass’n v. Dep’t of Interior, 538 U.S. 803,
808 (2003)). Courts examine three factors to determine ripeness: “(1) the likelihood that the
harm alleged by the plaintiffs will ever come to pass; (2) whether the factual record is
sufficiently developed to produce a fair adjudication of the merits of the parties’ respective
claims; and (3) the hardship to the parties if judicial relief is denied at this stage in the
proceedings.” Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012) (citation omitted). A claim is
not ripe if it involves “contingent future events that may not occur as anticipated, or indeed may
not occur at all.” Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580–81 (1985)
(citation omitted).
An examination of the nature of a § 1983 procedural due process claim is necessary to
understand the ripeness argument. A plaintiff ordinarily is entitled to bring § 1983 actions to
remedy violations of federal civil rights even where the state seeks to provide its own
administrative remedy for the alleged violation. Zinermon v. Burch, 494 U.S. 113, 124 (1990)
(internal quotation and citation omitted). “[O]verlapping state remedies are generally irrelevant
to the question of the existence of a cause of action under § 1983.” Id. In § 1983 actions for
violations of procedural due process, however, “the existence of state remedies is relevant in a
special sense.” Id. at 125 (emphasis in the original). “The constitutional violation actionable
under § 1983 is not complete when the deprivation [of a life, liberty, or property interest] occurs;
it is not complete unless and until the State fails to provide due process.” Id. at 126. A court
must examine the procedural safeguards built into the statutory or administrative procedure and
the remedies provided by statute or tort law in order to determine whether a constitutional
procedural due process violation has occurred. Id.
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Applying Zinermon, Defendants argue that Peloe has not suffered a procedural due
process violation here. Peloe filed suit immediately after the ARC hearing. The University has
not sought to impose a final sanction upon Peloe. The Code of Conduct provided for at least one
additional and up to three additional steps of disciplinary proceedings before a sanction would be
imposed. The ARC panel’s initial recommendation has not been reviewed by the dean of
students. Peloe has not appealed to the university appeals administrator and to the vice president
of student affairs and services. The “availability of additional remedies indicates that his
procedural due process claims are still premature.” Minix v. Frazier, 4 F. App’x 230, 231 (6th
Cir. 2001).
Defendants cite the following Sixth Circuit analysis of a public employee’s due process
claim in support of their argument:
The law is well-established that it is the opportunity for a post-deprivation hearing
before a neutral decisionmaker that is required for due process. As long as the
procedural requirements are reasonable and give the employee notice and an
opportunity to participate meaningfully, they are constitutionally adequate. See
Hennigh v. City of Shawnee, 155 F.3d 1249, 1256 (10th Cir. 1998). As succinctly
stated by the Seventh Circuit, the “availability of recourse to a constitutionally
sufficient administrative procedure satisfies due process requirements if the
complainant merely declines or fails to take advantage of the administrative
procedure.” Dusanek v. Hannon, 677 F.2d 538, 542–43 (7th Cir.) (citations
omitted), cert. denied sub nom Dusanek v. O’Donnell, 459 U.S. 1017, 103 S.Ct.
379, 74 L.Ed.2d 512 (1982). Consequently, where the employee refuses to
participate or chooses not to participate in the post-termination proceedings, then
the employee has waived his procedural due process claim. See Krentz v.
Robertson Fire Prot. Dist., 228 F.3d 897, 904 (8th Cir. 2000) (citations omitted).
Farhat v. Jopke, 370 F.3d 580, 596 (6th Cir. 2004) (arising in context of a public employee’s
disciplinary proceeding). The Sixth Circuit held that the public-employee plaintiff in Farhat had
waived his right to post-deprivation due process by failing to fully pursue arbitral proceedings.
Id. at 597.
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Of course, UC’s disciplinary proceedings are different than the pre- and post-termination
hearings available to the public employee in Farhat. Nonetheless, other circuit courts concur
with the Farhat analysis that a plaintiff cannot bring a claim for a due process violation when he
has not availed himself of due process protections. See e.g., Ashley v. N.L.R.B., 255 F. App’x
707, 709–10 (4th Cir. 2007) (“[A] plaintiff may not bypass a seemingly adequate administrative
process and then complain of that process’s constitutional inadequacy in federal court.”); Alvin v.
Suzuki, 227 F.3d 107, 116 (3d Cir. 2000) (“If there is a process on the books that appears to
provide due process, the plaintiff cannot skip that process and use the federal courts as a means
to get back what he wants.”); Dusanek v. Hannon, 677 F.2d 538, 542–43 (7th Cir. 1982) (“The
availability of recourse to a constitutionally sufficient administrative procedure satisfies due
process requirements if the complainant merely declines or fails to take advantage of the
administrative procedure.”); Hardman v. Johnson Cmty. Coll., No. 13-2535-JTM, 2014 WL
1400668, at *3 (D. Kan. Apr. 10, 2014) (stating that a party cannot create a due process claim by
short-circuiting established procedures).
Peloe comes at this issue from a different angle. He asserts that the issue is whether a
plaintiff must exhaust state administrative remedies before bringing a § 1983 claim for violation
of due process rights. The Supreme Court held in Patsy v. Board of Regents of State of Florida,
457 U.S. 496 (1982), that “exhaustion of state administrative remedies should not be required as
a prerequisite to bringing an action pursuant to § 1983.” Id. at 516. Peloe miscasts the issue,
however, and fails to account for the factual differences between Patsy and this case. The
plaintiff in Patsy alleged race and sex discrimination, not a violation of procedural due process
rights. Id. at 498. The dispositive due process issue in this case is not whether exhaustion is
required. The issue is when or whether a constitutional violation of procedural due process
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rights has occurred. See, e.g., Alvin, 227 F.3d at 116 (distinguishing a requirement that suit not
be filed until after a due process violation has occurred from an exhaustion requirement);
Dusanek, 677 F.2d at 543 (distinguishing an exhaustion of remedies requirement from the
“logical proposition that a state cannot be held to have violated due process requirements when it
has made procedural protection available and the plaintiff has simply refused to avail himself of
them”); Hardman, 2014 WL 1400668, at *4 (stating that the issue was not whether the action
was barred for a lack of exhaustion, but whether the school offered an adequate process which
was abandoned by the plaintiff). Zinermon teaches that a procedural due process claim does not
exist until UC fails to provide the due process. 494 U.S. at 126. Peloe filed this suit after the
first step of a multi-step procedure, denying UC the opportunity to provide him procedural due
process.
Peloe contends, nonetheless, that the holding in Patsy has been applied in due process
cases. For example, a court held that a prisoner could bring a procedural due process claim
concerning a disciplinary hearing without first appealing the administrative decision. Camps v.
Lyons, No. 89-3343, 1990 WL 40881, at *1 (E.D. Pa. Apr. 4, 1990). The court rejected the
defendants’ argument that a “plaintiff cannot claim a due process violation when the state has in
place an appeals procedure which, if utilized, might have corrected the alleged procedural
infirmity” based on the Patsy holding that “plaintiffs need not exhaust administrative procedures
to initiate a §1983 action.” Id. This Court has not found any cases which analyze or even cite
the unpublished Camps decision. The Court does not find the Camps decision to be persuasive
and will not follow it.
Peloe also relies on Yoder v. University of Louisville, No. 3:09-cv-205-S, 2009 WL
2406235 (W.D. Ky. Aug. 3, 2009), vacated on other grounds, 417 F. App’x 529 (6th Cir. 2011).
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The plaintiff in Yoder sued the university after she was expelled for breaching the university’s
written honor code and confidentiality agreement through her blog postings. Id. at *4. She sued
the university alleging that her expulsion had violated her right to free speech and her right to
procedural due process. Id. at *4. The university argued that the plaintiff’s claims were barred
because she had not exhausted her remedies by filing a grievance with the university. Id. at *4–
5. The court disagreed stating that “exhaustion in not a prerequisite to maintenance of an action
under § 1983.” Id. at *5. However, the court avoided adjudicating the merits of the
constitutional issues by holding that the plaintiff was wrongfully dismissed from the university
because she had not breached the honor code or the confidentiality agreement. Id. at *6–7. The
court’s comment about exhaustion of due process was dicta.
The Yoder case also is factually distinguishable in material respect from what has
transpired for Peloe. UC has not sought to impose a disciplinary sanction upon Peloe to date.
The ARC panel’s decision was only a recommendation. The recommendation had to be
approved by the dean of students, and Peloe had the right to appeal the decision of the dean of
students. Peloe short-circuited the disciplinary process by obtaining a temporary restraining
order in state court. By contrast, Yoder’s termination appears to have taken effect after she filed
an administrative review, which was denied, and prior to the date she initiated her civil rights
action against the University of Louisville. Yoder, 2009 WL 2406235, at *4.
Nasierowski Brothers Investment Co. v. City of Sterling Heights, 949 F.2d 890 (6th Cir.
1991), likewise, is factually distinguishable. Nasierowski had purchased property for
development in reliance upon the city’s favorable zoning opinion. Id. at 897. He was denied due
process when the city council amended the zoning classification of the property in an executive
session without affording Nasierowski notice or a hearing. Id. at 896–97. The district court held
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that Nasierowski’s constitutional claim was not ripe because he did not seek a variance from the
zoning appeals board as he was entitled to do under state law. Id. at 893. The Sixth Circuit
disagreed and stated that the procedural due process claim was ripe because “the Council’s
passage of the new zoning ordinance . . . was an act that in and of itself inflicted immediate
injury on Nasierowski.” Id. at 894–95 (emphasis in the original). The Sixth Circuit held that
Nasierowski was not required to pursue the separate administrative procedure of a zoning
variance before he could pursue his due process injury. Peloe’s case is different. To begin, this
is not a land use case. Also, under the facts alleged, Peloe has not yet suffered a constitutional
injury. See Bigelow v. Mich. Dep’t of Natural Res., 970 F.2d 154, 160 (6th Cir. 1992)
(“Nasierowski appears to stand merely for the sensible proposition that while different
circumstances may produce different results, the final decision rule does not apply when the
denial of procedural due process itself creates an injury.”) The disciplinary proceedings are not
complete and no disciplinary penalty has been imposed upon Peloe. As such, any procedural due
process claim is not ripe.
2.
Futility of the Disciplinary Appeals Process, Extrinsic Evidence, and the
Motion to File Supplemental Memorandum
Peloe also asserts that he should not be required to complete the disciplinary proceedings
at UC because the proceedings are not constitutionally sufficient. In other words, Peloe argues
that completing the disciplinary process would be futile. “In order to state a claim for failure to
provide due process, a plaintiff must have taken advantage of the processes that are available to
him or her, unless those processes are unavailable or patently inadequate.” Alvin, 227 F.3d at
116 (emphasis added). Peloe pleads that the University did not provide him with a
“constitutionally sufficient” procedure, but those legal conclusions couched as factual assertions
need not be accepted as true on a dismissal motion. See Iqbal, 556 U.S. at 678.
14
Peloe asserts that he would not have been able to raise his due process arguments during
the disciplinary process, but that suggestion amounts to no more than groundless speculation.
The Conduct of Conduct permits an accused student to appeal “[a] substantial procedural error”
to the university appeals administrator. (Doc. 9-1 at PageID 183.) Peloe also argues that the
process was not constitutionally sufficient because he would not receive a de novo or full
evidentiary hearing upon the appeal. This argument fails. At both the second and third stage of
the disciplinary process, the dean of students or the university appeals administrator,
respectively, can remand to the matter to the ARC panel for further consideration. The appeals
administrator can specifically instruct the ARC panel to hold a limited hearing to consider either
new information not available at the time of the initial hearing or to correct any procedural error
that occurred at the initial hearing. (Id. at PageID 177, 183–84.)
Relatedly, Peloe asserts that completing the disciplinary process, which he wrongfully
mischaracterizes as exhaustion of administrative remedies, would be futile because the
University officers were biased against him. Peloe submits extrinsic evidence at CM/ECF
Documents #14 and #46-2 to support this argument. A dismissal motion ordinarily must be
decided without consideration of matters outside the pleadings. Rondigo, 641 F.3d at 680. A
district court can convert a dismissal motion to a summary judgment motion in order to consider
extrinsic evidence, but both parties must be given the opportunity to present evidence. See Fed.
R. Civ. P 12(d). Neither party has moved to convert the pending Motion to Dismiss to a
summary judgment motion. However, the evidence filed as Document #14 was referenced in
and central to the allegations contained in the later-filed proposed Second Amended Complaint.
(Compare, e.g., Doc. 14 at PageID 338 with Doc. 16-1 at PageID 373.) It would promote form
over substance to not consider the evidence as if it were attached to the proposed Second
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Amended Complaint. In any event, the evidence filed as Document #14 is insufficient to save
Peloe’s claims from dismissal as explained herafter. The Court will discuss the evidence filed at
Document #46-2 separately below.
a.
Bias of Defendant Cummins, Kenya Faulkner, Carol Tonge Mack,
and Debra Merchant
Peloe argues that his extrinsic evidence establishes bias against him by Defendant
Cummins, Kenya Faulkner, the University’s general counsel, and Carol Tonge Mack, a dean at
the University. Peloe alleges that Cummins orchestrated the ARC panel hearing and Tonge
Mack participated as a member of the ARC panel. The allegations of bias against Cummins and
Tonge Mack amount to a claim of substantial procedural error during the first stage of the
disciplinary proceedings. For example, the report prepared by Cummins prior the ARC hearing
included statements made by Jane Doe #1 and Jane Doe #2, but did not include information
provided by email to Cummins from a student who supported Peloe’s version of events. (Doc.
14 at PageID 271–83; Doc. 9-1 at PageID 183.) Tonge Mack was copied on emails to and from
Cummins regarding Jane Doe #1’s and Jane Doe #2’s requests for academic accommodations
following the alleged sexual assault. (Doc. 14 at PageID 334–36.) The emails can be fairly read
to credit the students’ allegations that they were raped. Peloe asserts that Tonge Mack should
not have participated on the ARC panel after receiving such emails. (Doc. 16-1 at PageID 379.)
Turning to Faulkner, Peloe presents evidence suggesting that Jeff Corcoran, the UC Chief
of Police, was concerned that Faulkner, acting as general counsel, interfered in the police
department’s investigation of the charges. Faulkner forwarded to the Chief Corcoran and to
Cummins, among others, an email she received from Jane Doe #2’s mother complaining about
how the UC police officers had treated her daughter during the rape investigation. (Doc. 14 at
PageID 337.) Peloe alleges in the proposed Second Amended Complaint that Faulkner interfered
16
with, or attempted to influence, the criminal investigation by the UC police. (Doc. 16-1 at
PageID 373.) However, Peloe does not allege that Faulkner participated during his misconduct
hearing before the ARC panel. Nor does Peloe identify any way in which Faulkner would
participate in or influence the latter three stages of the UC’s disciplinary proceedings against
Peloe.
These allegations of bias and procedural errors are troubling, but the merits of whether
Peloe received due process in the early stages of the UC disciplinary proceedings are not before
the Court at this time. The allegations, moreover, do not establish futility in the appeals process.
Pursuant to the Code of Conduct, Peloe had the right to appeal the decision of the dean of
students on the basis of “substantial procedural error[s] . . . which affected the decision in the
case.” (Doc. 9-1 at PageID 183.) The university appeal administrator could have ordered a rehearing before the ARC panel to cure the alleged errors. (Id. at PageID 183–84.) Of note, the
Code of Conduct provides a procedure for substituting members of the ARC panel on remand if
members of the original panel are not available. (Id. at PageID 184.) For these reasons, the
Court finds that the extrinsic evidence concerning the purported bias of Cummins, Faulkner, or
Tonge Mack does not save Peloe’s due process claims.
Peloe also submits two exhibits which purportedly show bias on the part of Debra
Merchant, the University’s vice president for student affairs and services. She is the person with
final authority to accept, reject, or modify the sanction recommended to be imposed against a
student accused of nonacademic misconduct. (Doc. 9-1 at PageID 185.) Merchant received two
emails concerning the allegations against Peloe. The first email was from Jane Doe #2’s mother
to Faulkner complaining about the investigation of the alleged rape undertaken by the University
police. (Doc. 14 at PageID 337.) The second was from Faulkner to multiple University officials
17
concerning a conversation she had with Jane Does #2’s mother about the timing of Peloe’s
disciplinary hearing and her daughter’s academic progress. (Id. at PageID 338.)
The emails can be read together as evincing Faulkner’s and the mother’s concern for Jane
Doe #2 as a victim. The emails do not, however, suggest that Merchant viewed Jane Doe #2 as a
victim or pre-judged the allegations against Peloe. Peloe cites no case law holding that a
potential decisionmaker should be disqualified because she was aware of the allegations against
an accused person prior to the disciplinary proceedings. Rather, “[i]n the university setting, a
disciplinary committee is entitled to a presumption of honesty and integrity, absent a showing of
actual bias.” McMillan v. Hunt, No. 91-3843, 1992 WL 168827, at *2 (6th Cir. July 21, 1992);
see also Atria v. Vanderbilt Univ., 142 F. App’x 246, 256 (6th Cir. 2005) (quoting McMillan);
Gorman v. Univ. of Rhode Isl., 837 F.2d 7, 15 (1st Cir. 1988) (stating that prior contact between
students and participants in a disciplinary proceeding is likely and does not per se indicate bias).
Peloe’s extrinsic evidence is not sufficient at this stage in the litigation to establish that Merchant
would be biased against Peloe.
b.
Affidavit of Paul Moke
Next, Peloe submits the Affidavit of Paul Moke for his expert opinion. (Doc. 13-1.)
Defendants have moved to strike Moke’s Affidavit. Generally, an affidavit produced by an
expert witness must comport with the timing and substantive requirements of an expert report.
See Powell Mountain Energy, LLC v. Manalapan Land Co., Ltd., No. 09-cv-305-JBC, 2012 WL
2119279, at *2 (E.D. Ky. June 11, 2012). The Federal Rules of Civil Procedure provide that an
expert report must include the following:
(i) a complete statement of all opinions the witness will express and the basis and
reasons for them;
(ii) the facts or data considered by the witness in forming them;
(iii) any exhibits that will be used to summarize or support them;
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(iv) the witness’s qualifications, including a list of all publications authored in the
previous 10 years;
(v) a list of all other cases in which, during the previous 4 years, the witness
testified as an expert at trial or by deposition; and
(vi) a statement of the compensation to be paid for the study and testimony in the
case.
Fed. R. Civ. P. 26(a)(2)(B). If a party fails to provide information required by Rule 26(a), such
as an expert report, “the party is not allowed to use that information or witness to supply
evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is
harmless.” Fed. R. Civ. P. 37(c)(1); see also R.C. Olmstead, Inc. v. CU Interface, LLC, 657 F.
Supp. 2d 905, 909 (N.D. Ohio 2008) (“When an expert report does not provide the required
disclosures under Rule 26(a)(2)(B), the sanction of exclusion is automatic and mandatory unless
the sanctioned party can show that its violation of Rule 26(a) was either justified or harmless.”)
(quotations and citations omitted).
Moke’s Affidavit does not meet the requirements of an expert report pursuant to Rule
26(a)(2)(B). Moke offers a statement of his opinions and he identifies the documents he
considered to form his opinion consistent with the requirements of subsections (i) and (ii).
However, Moke does not state whether he authored any publications during the past ten years as
required by subsection (iv), and if he has, the name of the publications he has authored. He does
not state whether he has testified as an expert witness during the past four years as required by
subsection (v), and if he has, in what cases he has testified as an expert witness. Finally, Moke
does not disclose whether he was compensated for providing his affidavit as required by
subsection (vi). Defendants’ ability to impeach or challenge Moke’s testimony is hampered
without such information. Also, Defendants would be prejudiced by the admission of Moke’s
Affidavit because they have not deposed Moke nor had an opportunity to offer their own expert
in rebuttal. Cf. Borg v. Chase Manhattan Bank USA, N.A., 247 F. App’x 627, 636–37 (6th Cir.
19
2007) (affirming district court’s exclusion of an untimely submitted expert witness affidavit
because the opposing party was denied an opportunity to depose the witness). Accordingly, the
Court will strike the Affidavit of Paul Moke.
c.
Supplemental Memorandum Evidence
In his Motion to File a Supplemental Memorandum in Opposition (Doc. 46), Peloe seeks
to submit additional extrinsic evidence on the issue of futility. The evidence consists of
materials produced in a separate litigation against the University of Cincinnati, Doe I et al. v.
University of Cincinnati, No. 1406907 (Hamilton County C.P., Ohio). (Doc. 46-2.) The Court
finds that this evidence is untimely submitted and irrelevant to a determination of the pending
motions in this case. The Court will deny the Motion to File a Supplemental Memorandum and
consequently will exclude the purported evidence.
d.
Conclusion on the Procedural Due Process Claim Against UC and
Cummins in His Official Capacity
The Court concludes that Peloe filed this claim prematurely and that Peloe has failed to
establish the futility of continuing with UC’s disciplinary process. This conclusion is the same
whether the Court considers the four corners of the Amended Complaint only, the extrinsic
evidence, and/or the allegations in the proposed Second Amended Complaint. The Court is
required by Zinernon to examine the procedural safeguards built into the University’s
nonacademic misconduct disciplinary proceedings to determine whether Peloe’s procedural due
process rights have been violated. See 494 F.3d at 126. Peloe sued the University and Cummins
immediately after the first step of a multi-step procedure. He filed suit before higher level
University officials had an opportunity to review the ARC panel proceedings for error and before
the University sought to impose any final sanction. The Code of Conduct process appears to
provide the means by which the University could remedy the due process procedural errors about
20
which Peloe complains. The “availability of additional remedies indicates that [Peloe’s]
procedural due process claims are still premature.” Minix, 4 F. App’x at 231; see also Zinermon,
494 F.3d at 126 (stating that constitutional violation is not actionable unless and until the state
actor fails to provide due process).
The Court will dismiss as premature the procedural due process claim against the
University and Cummins in his official capacity without prejudice to re-filing. Additionally, the
Court will deny the Motion for Leave to Amend to the extent Peloe seeks to re-assert the due
process claims.
B.
Analysis of Procedural Due Process Claim Against Defendant Cummins in his
Individual Capacity
Defendants assert that the procedural due process claims against Defendant Cummins in
his individual capacity fail because Defendant Cummins is entitled to qualified immunity. The
doctrine of qualified immunity provides “that government officials performing discretionary
functions generally 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 known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity provides
immunity from suit, not simply a defense to liability. Pearson v. Callahan, 555 U.S. 223, 231
(2009). Courts determine if qualified immunity applies by (1) examining whether the facts
alleged would establish that the government official’s conduct violated a constitutional right and
(2) examining whether the specific right violated was clearly established. Saucier v. Katz, 533
U.S. 194, 200–01 (2001). The inquiry into whether the constitutional right was clearly violated
“must be undertaken in light of the specific context of the case, not as a broad general
proposition.” Id. at 201. Courts can examine either issue first. Pearson, 555 U.S. at 236.
21
The Court already has determined that Peloe cannot at this juncture establish that the
University violated his procedural due process rights. For the same reasons, Peloe cannot
establish on the facts alleged that Cummins violated his procedural due process rights. Cummins
is entitled to qualified immunity from suit because his alleged conduct did not violate Peloe’s
constitutional rights. See Pearson, 555 U.S. at 232.
C.
Analysis of the IX Claim in the Proposed Second Amended Complaint
Peloe seeks leave to file a proposed Second Amended Complaint adding a claim against
the University for violation of Title IX of the Education Amendments of 1972, 20 U.S.C.
§ 1681.1 Defendants argue that leave to amend should be denied on the grounds of futility.
Title IX provides generally that “[n]o person in the United States shall, on the basis of
sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving Federal financial assistance.”
20 U.S.C. § 1681(a). Peloe would allege in the proposed Title IX claim that the University
“committed impermissible gender bias against Peloe in the investigation and adjudication of
[Jane Doe #1’s] and [Jane Doe #2’s] accusations . . . because Peloe was a male accused of sexual
assault.” (Doc. 16-1 at PageID 390.) Peloe seeks to proceed under two theories of relief
recognized for Title IX claims: (1) that the “decision of the ARC Hearing Panel was an
erroneous outcome which was the direct result of a flawed proceeding[;]” and (2) that
“Defendants were deliberately indifferent to the gender bias against Peloe.” Id. In a typical
erroneous outcome case, the plaintiff “attack[s the] university disciplinary proceeding on
grounds of gender bias” by arguing that the plaintiff “was innocent and wrongly found to have
committed an offense.” Yusuf v. Vassar Coll., 35 F.3d 709, 715 (2d Cir. 1994). In the typical
1
Peloe concedes that a Title IX claim cannot be asserted against Cummins in his individual capacity. (Doc. 31 at
PageID 540.)
22
deliberate indifference case, “a plaintiff seeks to hold an institution liable for sexual harassment
and . . . [is required to] demonstrate that an official of the institution who had authority to
institute corrective measures had actual notice of, and was deliberately indifferent to, the
misconduct.” Mallory v. Ohio Univ., 76 F. App’x 634, 638 (6th Cir. 2003).
Defendants argue that Peloe should not be given leave to add the Title IX claim because
the claim is not ripe. 2 The Court agrees with Defendants. Peloe has asserted that gender bias
caused procedural errors and an erroneous outcome in the first step of a multi-step disciplinary
process. He also alleges deliberate indifference on the basis that a person at UC with knowledge
of misconduct in the disciplinary proceedings failed to correct the misconduct because Peloe was
male. Peloe filed this suit after the ARC panel issued its non-binding recommendation. Peloe
did not continue with steps two, three, or four of the disciplinary process. The Court cannot
fairly determine at this stage whether gender bias caused an erroneous outcome because Peloe
cut off the process before UC made an enforceable decision. The Court cannot determine
whether a person with knowledge of UC’s alleged misconduct failed to correct the misconduct
because the dean of students, the appeals administrator, and the vice president for student affairs
were denied the opportunity to correct any mistakes. In sum, the Title IX claim is not ripe
because it involves contingent events that might not occur as Peloe anticipates.
The University cites Fitzgerald v. Barnstable Sch. Comm., 555 U.S. 246 (2009), for the
proposition that Title IX does not have an administrative exhaustion requirement, but that case
does not change the Court’s analysis. The Supreme Court in Fitzgerald held that a plaintiff was
2
The University also argues that the proposed deliberate indifference claim fails to state a claim upon which relief
can be granted. There is a split within the Sixth Circuit whether a plaintiff must allege that he or she was subjected
to sexual harassment in order to state a claim for deliberate indifference under Title IX. Compare Doe v. Univ. of
the South, 687 F. Supp. 2d 744, 757–58 (E.D. Tenn. 2009) (calling sexual harassment a “critical component” of
deliberate indifference) with Wells v. Xavier Univ., 7 F. Supp. 3d 746, 751–52 & n.2 (S.D. Ohio 2014) (recognizing
a deliberate indifference claim absent an allegation of sexual harassment). The Court need not delineate the
contours of a Title IX claim.
23
not foreclosed by Title IX from bringing sex discrimination claims both under Title IX and under
the Equal Protection Clause pursuant to 42 U.S.C. § 1983. Id. at 258. The Supreme Court
observed that Title IX does not require administrative exhaustion to distinguish Title IX from
statutes such as the Education of the Handicapped Act (“EHA”) and the Telecommunications
Act of 1996 (“TCA”) which had “highly detailed and restrictive administrative and judicial
remedies.” Id. at 253–54. The Supreme Court held that the EHA and TCA provided exclusive
remedies which could not be supplemented by parallel § 1983 causes of action. Id.
The Fitzgerald case is not relevant to a determination of when a Title IX claim is ripe.
The Court is not imposing an administrative exhaustion requirement on Peloe. The Court has
concluded merely that Peloe’s claim that the University reached an erroneous outcome or acted
with deliberate indifference by failing to correct misconduct is premature because the University
has not made an enforceable final decision as to the sexual misconduct charges against Peloe.
Under the University’s Code of Conduct, a penalty would not be imposed for sexual misconduct
until an ARC panel recommendation to impose a sanction was both adopted by the dean of
students and not appealed by the accused student. (Doc. 9-1 at PageID 177.)
In sum, the Court concludes that the proposed Title IX claim is not ripe. The Court will
deny Plaintiff Peloe’s Motion for Leave to File Second Amended Complaint insofar as Peloe
seeks leave to add a Title IX claim.
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IV.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss (Doc. 9) is GRANTED,
Defendants’ Motion to Strike the Affidavit of Paul Moke (Doc. 27) is GRANTED, Plaintiff’s
Motion for Leave to File Second Amended Complaint (Doc. 16) is DENIED, and Plaintiff’s
Motion for Leave to File Supplemental Memorandum in Opposition to Motion to Dismiss (Doc.
46) is DENIED. The Court dismisses Plaintiff’s claims without prejudice.
IT IS SO ORDERED.
S/Susan J. Dlott____________________
Judge Susan J. Dlott
United States District Court
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