Doe v. Va. Polytechnic Inst. & State Univ.

400 F.Supp.3d 479

John DOE, Plaintiff,

v.VIRGINIA POLYTECHNIC INSTITUTE AND STATE UNIVERSITY, et al., Defendants.

James Doe, Plaintiff,

v.Virginia Polytechnic Institute and State University, et al., Defendants.

Jack Doe, Plaintiff,

v.Virginia Polytechnic Institute and State University, et al., Defendants.

Joseph Doe, Plaintiff,

v.Virginia Polytechnic Institute and State University, et al., Defendants.

Civil Action No. 7:18-cv-170

Civil Action No. 7:18-cv-320

Civil Action No. 7:18-cv-492

Civil Action No. 7:18-cv-523

United States District Court, W.D. Virginia, Roanoke Division.

Signed August 15, 2019

Andrew T. Miltenberg, Philip A. Byler, Nesenoff & Miltenberg, LLP, New York, NY, Jesse R. Binnall, Sarah Elizabeth York, Harvey & Binnall, PLLC, Alexandria, VA, Louise Tavey Gitcheva, Rees Broome, PC, Tysons Corner, VA, Tara Jill Davis, Nesenoff & Miltenberg, LLP, Boston, MA, for Plaintiff.

Katherine Cabell Londos, Nathan Henry Schnetzler, Winston Watts Burks, IV, Frith Anderson & Peake PC, Roanoke, VA, Kay Kurtz Heidbreder, University Legal Counsel, Virginia Tech, Blacksburg, VA, Kristina Julia Hartman, University Legal Counsel, Virginia Polytechnic, Blacksburg, VA, Marvin Hudson McClanahan, Virginia Polytechnic Institute and State University, Blacksburg, VA, Stephen Frederick Capaldo, University Legal Counsel, Blacksburg, VA, for Defendants.

MEMORANDUM OPINION

Elizabeth K. Dillon, United States District Judge

Each of these four cases involves a male plaintiff who was a student at defendant Virginia Polytechnic Institute and State University (Virginia Tech), alleges that he was wrongfully accused of some type of sexual misconduct, and was disciplined by Virginia Tech. In each, the court granted leave to proceed by pseudonym, and the court will refer to each plaintiff by that name (and/or the last three numbers of his corresponding case number) throughout this opinion. In their respective complaints, the plaintiffs name the university as well as individual employees of Virginia Tech who were involved in the disciplinary proceedings.

The four cases are not consolidated but are related in some ways. Significantly, the cases are brought by the same counsel, assert the same claims (although the factual basis underlying those claims is different for each case), and the defendants raise nearly identical arguments in their motions to dismiss, so there is significant overlap as to the legal challenges before the court. Accordingly, the court held a single hearing to address the pending motions in all four cases. At the hearing, a number of the issues raised in the briefing were resolved, either by agreement or by the court's ruling. This opinion addresses all of the remaining issues raised by the pending motions in each case.

I. BACKGROUND

Because the court's rulings make it unnecessary to discuss all four plaintiffs' claims in detail, the court discusses detailed factual background only as needed and in the course of its legal discussion. But the court provides here an extremely over-simplified view of the facts of each case, simply to help place the legal claims and issues in context.

John Doe (-170 case) was a varsity track athlete set to graduate from Virginia Tech in the spring of 2016. He was accused by Jane Roe of attempting to sexually assault her in January 2016, but he claims there was no encounter with her at all and instead that she misidentified him and mistook him for some other track athlete. After a hearing, he was found responsible for several violations of Virginia Tech policies, including verbal/non-verbal assault, sexual assault, and battery, and he was expelled. He appealed, but the appeal was denied.

James Doe (-320 case) was accused of sexually assaulting Jan Roe in November 2015 after a date party at which both had consumed alcohol. He claims that the encounter was consensual. In April 2016, she lodged an accusation against him, and, after a hearing, he was found responsible for rape. He was permanently dismissed from the university and required to leave campus within 24 hours. His appeal was denied.

Jack Doe (-492 case) was a Ph.D. student who was accused of sexually assaulting another male student in August 2015 after both had consumed alcohol. Jack claimed the encounter was consensual, but he was found responsible for sexual battery in September 2016 and suspended for one year (until Summer session 2017). He appealed, but the decision was not reversed.

Lastly, Joseph Doe (-523 case) was accused of assaulting June Roe, a fellow student, in February 2017. Both students were members of the Virginia Tech Snow Club, and they had previously had sexual encounters. The assault allegedly occurred at a rental house at Snowshoe, West Virginia, after a day of skiing and when both had consumed alcohol. Joseph claims that the encounter was consensual and instigated by June. In May 2017, Joseph was found responsible for sexual violence, rape, and sexual assault, and he was suspended until Fall 2019. He appealed, but the finding and penalty were not reversed.

Each of the complaints asserts the following claims:

Count I: a federal procedural due process claim brought pursuant to 42 U.S.C. § 1983, based on both a property interest and a liberty interest;

Count II: a state procedural due process claim that all parties agree is coextensive with the federal claims and so rises or falls with it;¹

Count III: a claim brought pursuant to Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681 – 88 (Title IX), which is, by agreement, now asserted against Virginia Tech only and not any individual defendants;

Count IV: a common-law negligence claim under Virginia law; and

Count V: a breach of contract claim under Virginia law.

Additionally, the two-later filed cases include a Count VI that asserts a claim alleging that the defendants' actions in suspending or expelling the plaintiffs violate Virginia's law of associations. In the two earlier cases, plaintiffs have filed motions to amend their complaints to include the same claim. Although the proposed amended complaints are unclear, plaintiffs' counsel clarified at the hearing that they were asserting the law-of-associations claims against the individual defendants only and only in their individual capacities. Each complaint also contains a separate count titled as a "declaratory judgment" count.

There are essentially three motions pending in each case.² The first is defendants' motion to dismiss for lack of jurisdiction, the second is defendants' motion to dismiss for failure to state a claim, and the third is plaintiffs' motion for leave to file amended complaints.

In addition to some other changes (such as dropping defendant Scott in -492 and omitting the negligence claims), the primary changes in the proposed amended complaints are three-fold. First, they include an assertion that defendant Shushok has "shown bias against males accused of sexual misconduct on social media," giving as an example that he "said on Twitter that the correct way to deal with sexual violence is to ‘talk to our boys.’ " (See, e.g. , Joseph's Proposed Am. Compl. ¶¶ 33, 86, Dkt. No. 32-1 (-523 case).) Second, they include additional allegations related to the appeals by the plaintiffs, including general assertions that the appeals process did not provide a meaningful opportunity for each plaintiff to clear his name and that the appeal process "disproportionately and negatively affects male students." (See, e.g. , id. ¶¶ 52, 68, 87.) Third, they include assertions that Virginia Tech's notation on each plaintiff's transcript regarding the basis for his suspension or expulsion constituted a separate due process violation.³ (See, e.g. , id. ¶¶ 58, 69.)

At the hearing, plaintiffs' counsel repeatedly sought leave to amend on other grounds, although counsel acknowledged that no second proposed amended complaint has been filed, nor has a subsequent motion to amend.⁴ Nonetheless, the court noted that it would consider whether to grant leave to file another motion to amend after ruling on the motions to dismiss.

In their motions, defendants seek dismissal of all claims on various grounds. At the motions hearing, the court confirmed that the parties agree that the negligence claims are subject to dismissal with prejudice because plaintiffs failed to give the required notice and the statute of limitations has now run. Thus, as the court noted at the hearing, Count IV of each complaint is dismissed with prejudice. Similarly, plaintiffs agree that the breach of contract claim in Count V of each case is barred by the Eleventh Amendment and cannot be brought in this court. Although they ask that defendants consent to the state claims being heard in the present matter, there is no consent. Thus, Count V in each complaint also is dismissed, but without prejudice to plaintiffs' ability to assert that claim in state court.

As noted above, the parties also agreed that the individual defendants could not be named in the Title IX counts, and so they are dismissed from those counts. Plaintiffs also agreed in their briefing that the Commonwealth's Eleventh Amendment immunity bars claims (except the Title IX claim) for money damages against Virginia Tech and all claims for damages against individuals in their official capacities.

After those rulings and concessions, left in the case are the two due process claims (Counts I and II); the Title IX claim (Count III), the claim under Virginia's law of associations, and the count seeking declaratory relief.

The relief under the first two claims also has been limited by agreement. With regard to the Section 1983 claim, remaining are claims for declaratory and injunctive relief against Virginia Tech, and damages against individuals only in their individual capacities. The parties dispute whether plaintiffs also may continue with their official capacity claims under the Ex parte Young exception, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), which allows official capacity claims under § 1983 to...