Doe v. Ohio State Univ., Case No.: 2:16–cv–171

• Court: United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
• Writing for the Court: GEORGE C. SMITH, JUDGE, UNITED STATES DISTRICT COURT
• Citation: 239 F.Supp.3d 1048
• Parties: John DOE, Plaintiff, v. The OHIO STATE UNIVERSITY, et al., Defendants.
• Docket Number: Case No.: 2:16–cv–171
• Decision Date: 10 March 2017

239 F.Supp.3d 1048

John DOE, Plaintiff,
v.
The OHIO STATE UNIVERSITY, et al., Defendants.

Case No.: 2:16–cv–171

United States District Court, S.D. Ohio, Eastern Division.

Filed March 10, 2017

239 F.Supp.3d 1055

Eric John Rosenberg, The Rosenberg Law Office LPA, Granville, OH, Tracy L. Turner, Law Office of Tracy L. Turner, Columbus, OH, for Plaintiff.

Christina Louise Corl, Plunkett Cooney, Reid T. Caryer, Ohio Attorney General's Office, Columbus, OH, for Defendants.

OPINION AND ORDER

GEORGE C. SMITH, JUDGE, UNITED STATES DISTRICT COURT

Plaintiff John Doe initiated this case against Defendants The Ohio State University ("OSU"), Javaune Adams–Gaston, Kelly B. Smith, J.D., Matthew Page, and Natalie Spiert, (collectively "Individual Defendants"). Plaintiff alleges that he has been harmed by false allegations of sexual misconduct and has brought the following claims against the Defendants: violations of Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681, et seq. , violations of the Fifth and Fourteenth Amendments to the Ohio and United States Constitutions under 42 U.S.C. § 1983, defamation, and intentional infliction of emotional distress. (Doc. 36, Pl.'s 3rd Am. Compl. (hereinafter "Am. Compl.") ¶ 1). Plaintiff seeks a declaratory judgment, money damages, and injunctive relief. This matter is currently before the Court on Defendants' Motion to Dismiss Plaintiff's Third Amended Complaint (Doc. 37). The matter is now ripe for review. For the reasons that follow, Defendants' Motion to Dismiss is GRANTED IN PART AND DENIED IN PART. Defendants' have also moved to strike the declaration of Joshua Engel which has been fully briefed. The Motion to Strike is hereby DENIED.

I. BACKGROUND

A. The Parties

Plaintiff John Doe graduated from high school with honors, then obtained an associate degree in nursing from the University

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of Toledo and became a registered nurse ("RN") in 2009. (Doc. 36, Am. Compl. ¶ 45). In 2011, John Doe enrolled at OSU to complete his Bachelor's degree with the goal of attending medical school after graduation. He also worked as an RN at OSU's Wexner Medical Center ("OSUWMC"). (Id. at ¶ 46).

Defendant OSU is a public university. OSU receives federal financial assistance and therefore is subject to Title IX. (Id. at ¶ 153). Defendant Dr. Javaune Adams–Gaston is OSU's Vice President for Student Life. Defendant Kelly B. Smith is an Assistant Director of OSU's Office of Student Life. Defendant Matthew B. Page is an Assistant Director of OSU's Office of Student Life. Defendant Natalie Spiert is OSU's Student Advocacy Program Coordinator. OSU's Office of Student Life is responsible for enforcing OSU's Code of Student Conduct ("Code of Conduct"). (Id. at ¶ 71, Ex. Q).

B. OSU's Code of Student Conduct

Section 3335–23–02 of the Code of Conduct (effective date June 18, 2012) defines the jurisdiction and states that it applies to:

The on-campus conduct of all students and registered student organizations, including conduct using university computing or network resources. The code also applied to the off-campus conduct of students and registered student organizations in direct connection with:

A. Academic course requirements or any credit-bearing experiences, such as internships, field trips, study abroad, or student teaching;

B. Any activity supporting pursuit of a degree, such as research at another institution or a professional practice assignment;

C. Any activity sponsored, conducted, or authorized by the university or by registered student organizations;

D. Any activity that causes substantial destruction of property belonging to the university or members of the university community, or causes or threatens serious harm to the safety or security of members of the university community; or

E. Any activity in which a police report has been filed, a summons or indictment has been issued, or an arrest has occurred for a crime of violence.

(Doc. 36–2, Am. Compl. Ex. R ("Code of Conduct") at 1).

The Code of Conduct sets forth a number of actions that constitute prohibited conduct, including sexual misconduct in section 3335–23–04. (Id. at 2–6). With respect to sexual misconduct the Code of Conduct states:

C. Sexual Misconduct Physical contact or other non-physical conduct of a sexual nature in the absence of clear, knowing and voluntary consent, including but not limited to:

1. Non-consensual sexual intercourse, defined as any sexual penetration (anal, oral, or vaginal), however slight, with any body part or object by any person upon any person without consent. Non-consensual sexual contact, defined as any intentional sexual touching, with any body part or object by any person upon any person without consent.

2. Sexual exploitation, defined as taking non-consensual, unjust or abusive sexual advantage of another. Examples include, but are not limited to, prostituting another student, non-consensual video or audio-taping of sexual activity, going beyond the boundaries of consent (such as knowingly allowing another to surreptitiously watch otherwise consensual sexual

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activity), engaging in non-consensual voyeurism, and knowingly transmitting or exposing another person to a sexually transmitted infection (STI) without the knowledge of the person.

3. Sexual harassment, as defined in applicable university policy.

4. Indecent exposure, defined as the exposure of the private or intimate parts of the body in a lewd manner in public or in private premises when the accused may be readily observed.

For the purposes of this rule, consent shall be defined as the act of knowingly and affirmatively agreeing to engage in a sexual activity. Consent must be voluntary. An individual cannot consent who is substantially impaired by any drug or intoxicant; or who has been compelled by force, threat of force, or deception; or who is unaware that the act is being committed; or whose ability to consent is impaired because of a mental or physical condition; or who is coerced by supervisory or disciplinary authority. Consent may be withdrawn at any time. Prior sexual activity or relationship does not, in and of itself, constitute consent.

(Id. at 3–4).

The Code of Conduct sets forth the following with respect to filing a complaint for violation of the Code of Conduct and the hearing procedure:

3335–23–06 Filing of complaint and initiation of charges

A written complaint alleging a violation of the code of student conduct should be filed with the university as soon as practicable following the discovery of the alleged violation. Absent extraordinary circumstances, the written complaint must be filed within six (6) months for cases of non-academic misconduct (3335–23–04 (B–Q)), and one (1) month for academic misconduct (3335–23–04 (A)), from the date upon which a university official becomes aware of the alleged violation and identifies the student(s) who allegedly committed the violation. Absent extraordinary circumstances, the university must initiate charges, if any, within one (1) year of the filing of the complaint.

3335–23–07 Notice of charges

A. Notification Students shall be notified of university charges in writing, unless a more effective form of notification is deemed appropriate. Charges may be presented in person, by placement in a student's residence hall mailbox, by email to the accused student's official university email address (which may direct the student to view the notice on a secure website) or by mail to the accused student's local or permanent address on file in the office of the university registrar.

B. Current address All students are required to maintain an accurate and current local and permanent address with the University Registrar.

C. Meeting with university official Following notification of charges, students are strongly encouraged to and shall be afforded the opportunity to meet with a university official for the purpose of explaining the university student conduct process and discussion of the charges.

D. Failure to respond Failure of the accused student to respond to the initiation of charges or schedule a preliminary meeting shall in no way prevent the university from scheduling and conducting a hearing in the absence of the accused student.

3335–23–08 Administrative decision

In all cases, a student charged with one or more violations of the code of student conduct has the right to a hearing. However, in a case where a charged student

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admits to such violation(s) in writing, the student may request in writing to have a decision as to appropriate action made administratively by a hearing officer rather than have the charges referred to a hearing officer or board for a hearing. In such situations, the student waives the right to a hearing and the related procedural guarantees provided by a hearing officer or board hearing. Administrative decisions in academic misconduct cases involving graduate students are to be made in consultation with the graduate school. Following an administrative decision, the student retains the right to request an appeal of the

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