Doe v. Rector & Visitors of George Mason Univ., Case No. 1:15–CV–209.

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: T.S. ELLIS, III, District Judge.
• Citation: 132 F.Supp.3d 712
• Parties: John DOE, Plaintiff, v. The RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY, et al., Defendants.
• Docket Number: Case No. 1:15–CV–209.
• Decision Date: 16 September 2015

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John DOE, Plaintiff,
v.
The RECTOR AND VISITORS OF GEORGE MASON UNIVERSITY, et al., Defendants.

Case No. 1:15–CV–209.

United States District Court, E.D. Virginia, Alexandria Division.

Signed Sept. 16, 2015.

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Justin Emerson Dillon, Kaiser Legrand & Dillon PLLC, Washington, DC, for Plaintiff.

David Garnett Drummey, Brian Eugene Walther, George Mason University, Fairfax, VA, for Defendant.

MEMORANDUM OPINION

T.S. ELLIS, III, District Judge.

Plaintiff John Doe¹ is a former George Mason University ("GMU") student who was expelled from GMU following an administrative process that found him responsible for various violations of GMU's student conduct regulations, including regulations pertaining to sexual misconduct. In this action, plaintiff challenges his expulsion. Specifically, in a ten-count Second Amended Complaint ("SAC"), plaintiff sues the following entities:

(i) the Rector and Visitors of George Mason University (hereinafter also "GMU"),²

(ii) Angel Cabrera, President of GMU,

(iii) Brent Ericson, the Assistant Dean of Students and Director of the Office of Student Conduct at GMU, and

(iv) Juliet Blank–Godlove, the Assistant Dean of Students at GMU,

alleging that these defendants collectively violated

(i) his right to procedural and substantive due process under the federal and Virginia constitutions (Counts I, II, and III),

(ii) his First Amendment rights (Count IV),

(iii) various common law duties (Counts V, VI, and VII),

(iv) Title IX, codified at 20 U.S.C. § 1681(a) (Count VIII), and

(v) his right to equal protection under the Fourteenth Amendment to the U.S. Constitution and the Virginia Constitution (Counts IX and X).

Defendants moved to dismiss the SAC pursuant to Rules 12(b)(1) and 12(b)(6), Fed.R.Civ.P. The motion was fully briefed and argued. A bench ruling and Order issued, (i) dismissing plaintiff's negligence claims; (ii) denying the motion to dismiss the remaining claims; (iii) dismissing GMU as a defendant with respect to Counts I, II, IV, and IX; (iv) dismissing Cabrera as a defendant with respect to Count VIII; and (v) declining to grant

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Ericson's and BlankGodlove's qualified immunity defenses without prejudice, to be raised at the summary judgment stage. See Doe v. George Mason Univ., 1:15–cv–209 (E.D.Va. June 26, 2015) (Order). This Memorandum Opinion records, and in some instances alters, those rulings and sets forth the reasons for them.

I.

Because defendants' motion includes a subject matter jurisdiction challenge, it is necessary to address this issue first. In essence, defendants contend that federal question jurisdiction does not exist because plaintiff has not alleged a property interest protected by the Constitution sufficient to support plaintiff's due process claims in Counts I and II. This argument fails.

Failure to allege an element of a claim that is otherwise clearly a federal question claim constitutes a failure to state a claim pursuant to Rule 12(b)(6), not, as defendants contend, a failure of subject matter jurisdiction. But even accepting defendants' flawed argument that this defect would result in an absence of federal question jurisdiction, the SAC alleges other federal causes of action arising from plaintiff's expulsion from GMU. See SAC Counts IV (First Amendment), VIII (Title IX), and IX (Equal Protection). These claims clearly trigger federal question jurisdiction. And because plaintiff's state claims in the SAC also arise out of the same transaction or occurrence—his expulsion from GMU—as his federal claims, it is also clear that there is supplemental jurisdiction over the state claims. See 28 U.S.C. § 1367. Accordingly, the SAC alleges a sufficient basis for federal jurisdiction over every count of the SAC, and therefore, defendants' motion under Rule 12(b)(1) must be denied.

II.

The next step in the analysis of defendants' motion is to address defendants' arguments that the claims in the SAC fail to state a claim upon which relief can be granted under Rule 12(b)(6). The facts set forth in the complaint, which are succinctly summarized here, must be assumed to be true for purposes of addressing defendants' Rule 12(b)(6) arguments. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

In 2012, while plaintiff was a student at GMU, he entered into a romantic and sexual relationship with a woman, referred to here pseudonymously as Jane Roe, who did not attend GMU. The sexual component of this relationship involved a practice known as "BDSM," which refers to bondage and discipline, dominance and submission, and sadism and masochism. It is sufficient here to note that some of the sexual activity in this BDSM relationship involved choking, biting, slapping, spanking, whipping, and restraining Roe. As a part of their BDSM practice, plaintiff and Roe agreed on a safe word—"red"—that Roe could use to signal to plaintiff to stop sexual activity. Indeed, Roe specifically told plaintiff that if she ever said "stop" during sex, he should not stop because that was part of the BDSM game. The safe word was how Roe would communicate to plaintiff that the activity needed to end.

On the night of October 27, 2013, Roe came to plaintiff's on-campus room to spend the night. Plaintiff alleges that the two then had consensual sex. At one point, Roe used her hand to push against plaintiff, and, at another point, she answered "I don't know" when plaintiff asked if she wanted him to continue sexual activity. At neither point, however, did Roe use "red," the code word for stop.

In January 2014, plaintiff and Roe ended their relationship. In the months following the breakup, plaintiff sent a few text messages to Roe, to which she did not

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respond. Eventually, in March 2014, plaintiff texted Roe that he would shoot himself if she did not contact him by the following day to let him know she was still alive. Thereafter, on April 15, 2014, Roe reported the events of October 27, 2013, to the campus police at her college and alleged that she had not consented to sexual intercourse that night. Later, on May 2, 2014, she reported the events to the GMU Police, but indicated that she was unsure if she wanted them to pursue her complaint. Pursuant to GMU's policy, the GMU police report was referred to the Dean of Students Office.

On August 19, 2014, plaintiff received an email from defendant Brent Ericson, GMU's Assistant Dean of Students and Director of the Office of Student Conduct. In this email, Ericson advised plaintiff that plaintiff was accused of four violations of GMU's sexual misconduct policy. Specifically, plaintiff was alleged to have violated: (i) Code 2013.7.A (Infliction of physical harm to any person(s) including self); (ii) Code 2013.8.A (Deliberate touching or penetration of another person without consent); (iii) Code 2013.8.C (Conduct of a sexual nature); and (iv) Code 2013.9.B (Communication that may cause injury, distress, or emotional or physical discomfort). SAC ¶ 49.

On September 5, 2014, a hearing on the alleged violations was convened before a panel of three staff and faculty members who had received specialized training in adjudicating sexual misconduct cases. The panel heard testimony from Roe, the GMU police officer who had taken Roe's report, plaintiff, and two other GMU students called by plaintiff. Plaintiff's testimony described the nature of his and Roe's BDSM relationship, and he specifically stated that certain behaviors that may indicate lack of consent in a non-BDSM sexual encounter did not have the same meaning in a BDSM encounter. On September 12, 2014, the three-member panel issued its decision absolving plaintiff of wrongdoing and finding him "not responsible" on each of the four charges.

Thereafter, on September 19, 2014, Roe filed an appeal on the basis of "procedural irregularities" with the hearing.³ The deciding official for the appeal was defendant Brent Ericson, the Assistant Dean of Students who had initially notified plaintiff of the accusations against him. Ericson did not allow plaintiff to file anything opposing the appeal, and he evaluated the appeal solely on the basis of the paper and audio record of the panel hearing. Moreover, Ericson had been in contact with a counselor from Roe's school who told Ericson that the police report from Roe's school was "more accurate" than GMU's, which contained "many errors." SAC ¶ 75. Although plaintiff was allowed to meet with Ericson to discuss the appeal, there is no indication that plaintiff was given a formal opportunity to present written or oral arguments in connection with the appeal or to have counsel present.

On October 10, 2014, Ericson issued his decision essentially reversing, in part, the panel's findings and conclusions and instead finding plaintiff responsible for two of the four charges: (i) deliberate touching or penetration of another person without consent and (ii) communication that

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may cause injury, distress, or emotional and physical discomfort. The appeal decision...