Doe v. The Ohio State University et al
OPINION AND ORDER adopting 66 Report and Recommendations & denying 2 Motion for Preliminary Injunction. Signed by Judge Gregory L. Frost on 4/20/2016. (kk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
Case No. 2:15-cv-2830
JUDGE GREGORY L. FROST
Magistrate Judge Terence P. Kemp
THE OHIO STATE UNIVERSITY, et al.,
OPINION AND ORDER
This matter is before the Court for consideration of the Magistrate Judge’s February 22,
2016 Report and Recommendation (ECF No. 66) and Plaintiff’s objections (ECF No. 70). For
the reasons that follow the Court OVERRULES Plaintiff’s objections (ECF No. 70), ADOPTS
and AFFIRMS the Report and Recommendation (ECF No. 66), and DENIES the motion for a
preliminary injunction (ECF No. 2).
Given the Magistrate Judge’s extensive treatment of the factual background in the Report
and Recommendation, the events relevant to today’s decision need only be presented in summary
form here. Plaintiff, John Doe, is a former medical school student at The Ohio State University
who was enrolled in a joint M.D./M.B.A. program.1 He was scheduled to graduate in Spring
2016, but in July 2015, Plaintiff came before the school’s Conduct Board to answer an allegation
that he had engaged in sexual misconduct with a medical student, Jane Roe, based on a failure to
The Court previously ordered that the parties should refer to Plaintiff as “John Doe.” (ECF
obtain her consent.2 Following the conduct board hearing, the school expelled Plaintiff based on
a finding that he had engaged in sexual misconduct. After an unsuccessful appeal, Plaintiff filed
the instant action.
In his complaint, Plaintiff asserts the following claims: declaratory judgment that his due
process rights were violated (Count I); violation of 42 U.S.C. § 1983 (Count II); declaratory
judgment that violations occurred of Title IX, 20 U.S.C. § 1681 et seq., and its implementing
regulations, 34 C.F.R. Part 106 (Count III); violation of Title IX (Count IV); and injunctive relief
(Count V). Previously, this Court denied Plaintiff’s request for a temporary restraining order
reinstating him as a student at The Ohio State University. (ECF No. 20.) Following scheduling
issues, the parties then requested that the Court refer Plaintiff’s request for a preliminary
injunction to the Magistrate Judge, which this Court did. (ECF Nos. 45, 46.)
The Magistrate Judge held a preliminary injunction hearing in February 2016. Shortly
thereafter, the Magistrate Judge filed his Report and Recommendation, recommending that this
Court deny the motion for a preliminary injunction. (ECF No. 66.) Plaintiff objects to this
recommendation. (ECF No. 70.) Briefing on the objections has closed, and the Report and
Recommendation and objections are ripe for disposition.
A. Standard Involved
When a party objects within the allotted time to a report and recommendation, the Court
“shall make a de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C. § 636(b)(1); see also Fed.
The Court previously entered an oral order that the parties should refer to the alleged victim as
R. Civ. P. 72(b). Upon review, the Court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
Plaintiff seeks a preliminary injunction that reinstates him as a student in good standing,
which would enable him to pursue being “matched” with a medical residency. In deciding
whether to issue such an order, this Court must consider the following factors: (1) whether he has
shown a strong or substantial likelihood of success on the merits; (2) whether he has
demonstrated irreparable injury; (3) whether issuance of injunctive relief would cause substantial
harm to others; and (4) whether the public interest is served by the issuance of an injunction. See
Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998). All four factors
need not be met; rather, they are to be considered in balance. In re DeLorean Motor Co., 755
F.2d 1223, 1229 (6th Cir. 1985). Although the four factors must be balanced, the first factor—
likelihood of success on the merits—is traditionally of the greatest importance. See Roth v. Bank
of the Commonwealth, 583 F.2d 527, 537 (6th Cir. 1978).
In examining these factors, this Court remains cognizant that Plaintiff seeks issuance of a
preliminary injunction based only on his due process claims. As this Court has previously noted,
the Sixth Circuit has explained that “[t]he Due Process Clause of the Fourteenth Amendment
prohibits States from depriving ‘any person of life, liberty, or property, without due process of
law.’ ” Jaber v. Wayne State Univ. Bd. of Governors, 487 F. App’x 995, 996 (6th Cir. 2012)
(quoting U.S. Const. amend. XIV, § 1). To establish a due process claim, Plaintiff must show
that the OSU Defendants (1) deprived him (2) of a protected interest (3) without adequate
process, which means notice and an opportunity to be heard. See Goss v. Lopez, 419 U.S. 565,
579; Albrecht v. Treon, 617 F.3d 890, 894 (6th Cir. 2010).
The court of appeals has further explained the general contours of an inquiry into a due
process claim such as is presented here:
In this Circuit we have held that the Due Process Clause is implicated by
higher education disciplinary decisions. . . . “Once it is determined that due
process applies, the question remains what process is due.” Morrissey v. Brewer,
408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). . . .
[T]here are two basic due process requirements: (1) notice, and (2) an opportunity
to be heard. . . .
Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 633-34 (6th Cir. 2005). The “opportunity to be
heard” prong means that a disciplinary “hearing, whether formal, informal, live or not, must be
meaningful and must provide the accused with the opportunity to ‘respond, explain, and defend.’
” Id. at 635 (quoting Gorman v. Univ. of R.I., 837 F.2d 7, 13 (1st Cir. 1988)). What constitutes
“meaningful” is partially dependent on context, as the court of appeals has recognized in stating
[a]n accused individual has the right to respond and defend, which will generally
include the opportunity to make a statement and present evidence. It may also
include the right to call exculpatory witnesses. Some circumstances may require
the opportunity to cross-examine witnesses, though this right might exist only in
the most serious of cases.
Id. at 636. Cognizant of the foregoing analytic framework, the Court shall address Plaintiff’s
three objections in order, beginning with the critical factor of whether the Magistrate Judge erred
in concluding that Plaintiff failed to demonstrate a likelihood of success on the merits.
1. Likelihood of success on the merits
In the Report and Recommendation, the Magistrate Judge concluded that Plaintiff failed
to demonstrate that he is likely to succeed on the merits of his due process claim. Plaintiff
objects to this conclusion and argues that the Magistrate Judge erred in reaching this conclusion
because the Magistrate Judge viewed and analyzed the disciplinary process in components, as
opposed to considering the process holistically. In other words, Plaintiff asserts, the Magistrate
Judge failed to look at the big picture to ascertain whether Plaintiff was afforded due process.
This Court disagrees. The Court recognizes that the Magistrate Judge indeed discussed
specific components of the investigative and hearing process by breaking the discussion into
numbered sections addressing the particularized issues involved. But this drafting approach does
not necessarily lead to the type of fractured analysis or segmented thinking that Plaintiff assigns
to the Magistrate Judge. Instead of suggesting the inference that the Magistrate Judge looked
only at the individual trees while forgetting that his task was to analyze the forest, the Report and
Recommendation equally suggests that the Magistrate Judge simply made a drafting decision to
present his points with clarity.
Moreover, regardless of whether the Magistrate Judge engaged in an impermissible
checklist style of review, this Court has independently reviewed the Report and
Recommendation and the hearing transcripts at length. Plaintiff does not so much take issue
with the Report and Recommendation’s factual finding as he instead disagrees with the
conclusions reached based on those findings. Considering the factual findings in light of the
relevant due process precedent, this Court again concludes—as it did in the earlier decision on
the request for a temporary restraining order—that Plaintiff has failed to demonstrate a
substantial likelihood of succeeding on the merits of his due process claims. Viewing the
evidence and the Magistrate Judge’s analysis in the totality, there is not enough here to say that
Plaintiff will likely prevail. This Court reaches this conclusion for the same reasons as the
Magistrate Judge did.3
The Court notes that it regards the cross-examination issue as turning on whether Plaintiff was
denied the right to effective cross-examination and not as turning on the absence of any right to
Therefore, the Court overrules Plaintiff’s first objection. In so doing, this Court
emphasizes that it has no idea whether Plaintiff is telling the truth. The Court also has no idea
whether Jane Roe is telling the truth. In today’s context, the answers to these issues are not
relevant. What is relevant at this juncture is whether Plaintiff has demonstrated a sufficient
likelihood that he will be able to prove that the OSU Defendants denied him due process. In
attempting to meet his burden, Plaintiff has introduced evidence that has given this Court
significant pause as to many of the practices that the university employs and the rules it has
established to govern its investigative and disciplinary hearing process. The Magistrate Judge
noted many of these same weaknesses and concerns. Arguably, it would make sense for the
university to revisit its disciplinary process design and consider what it should do and not just
what it is at a minimum required to do. But the dispositive point here is that not even these
concerns—taken together or viewed individually—suggest that Plaintiff can prevail on his due
process claim. In the absence of evidence of a constitutional violation, the Court can again only
conclude that Plaintiff has failed to demonstrate a substantial likelihood of success on the merits
to weigh in favor of his request for a preliminary injunction.
2. Irreparable Injury & Public Interest
Plaintiff also objects to two additional conclusions by the Magistrate Judge, specifically,
that Plaintiff failed to demonstrate a likelihood of irreparable injury in the absence of an
injunction and that the public and private interests favor neither party in the dispute over
injunctive relief. In light of this Court’s discussion of the likelihood of success on the merits
factor, the Court need not conclusively discuss the objections to these two additional factors. A
court is not required to make specific findings concerning each of the four factors used in
determining a motion for injunctive relief if fewer factors are dispositive of the issue. Jones v.
City of Monroe, 341 F.3d 474, 476 (6th Cir. 2003). Given Plaintiff’s failure on the most critical
factor, the likelihood of success on the merits, this Court would decline to issue a preliminary
injunction even if Plaintiff’s irreparable harm and public interest objections were well taken.
Moreover, even if the Court were to engage in an extended discussion of the merits of these
additional objections, the end result would be the same given that the Court agrees with the
reasoning and conclusions of the Magistrate Judge. Common sense suggests possible irreparable
injury more than the evidence that Plaintiff presented, and, on balance, the public and private
interests are essentially at equipoise.
For the foregoing reasons, the Court OVERRULES Plaintiff’s objections (ECF No. 70),
ADOPTS and AFFIRMS the Report and Recommendation (ECF No. 66), and DENIES the
motion for a preliminary injunction (ECF No. 2).
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE
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