Gutterman v. Ind. Univ.

• Decision Date: 01 September 2021
• Docket Number: 1:20-cv-02801-JMS-MJD
• Citation: 558 F.Supp.3d 720
• Parties: Tyler Cameron GUTTERMAN, Dale Nelson, Hunter Johnson, and Brian Hiltunen, Plaintiffs, v. INDIANA UNIVERSITY, BLOOMINGTON and Pamela S. Whitten, in her official capacity as President of Indiana University, Defendants.
• Court: U.S. District Court — Southern District of Indiana

558 F.Supp.3d 720

Tyler Cameron GUTTERMAN, Dale Nelson, Hunter Johnson, and Brian Hiltunen, Plaintiffs,

v.INDIANA UNIVERSITY, BLOOMINGTON and Pamela S. Whitten, in her official capacity as President of Indiana University, Defendants.

No. 1:20-cv-02801-JMS-MJD

United States District Court, S.D. Indiana, Indianapolis Division.

Signed September 1, 2021

Anita Yvonne Milanovich, Milanovich Law, PLLC, Butte, MT, Daniel Suhr, Pro Hac Vice, Jeffrey M. Schwab, Pro Hac Vice, Reilly Stephens, Pro Hac Vice, Liberty Justice Center, Chicago, IL, for Plaintiffs.

Jenny R. Buchheit, Stephen Elliot Reynolds, Tiffany Sue Kim, Sean Tyler Dewey, Ice Miller LLP, Indianapolis, IN, for Defendant Bloomington Indiana University.

Sean Tyler Dewey, Ice Miller LLP, Indianapolis, IN, for Defendant Pamela S. Whitten.

ORDER

Jane Magnus-Stinson, Judge

Plaintiffs Tyler Gutterman, Dale Nelson, Hunter Johnson, and Brian Hiltunen are all undergraduate students at Defendant Indiana University, Bloomington ("IU"). In 2018, Plaintiffs were pledges at Beta Theta Pi, a fraternity at IU. They allege that IU used data gathered from their Official University Identification Card ("CrimsonCard") to track their movements as part of an investigation into hazing at Beta Theta Pi, which violated their rights under the Fourth and Fourteenth Amendments to the United States Constitution, and constituted a breach of contract. IU and Defendant Pamela Whitten,¹ IU's President, have filed a Motion to Dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), [Filing No. 19], which is now ripe for the Court's consideration.

I. STANDARD OF REVIEW

Rule 12(b)(1) "allows a party to move to dismiss a claim for lack of subject matter jurisdiction." Hallinan v. Fraternal Order of Police of Chicago Lodge No. 7 , 570 F.3d 811, 820 (7th Cir. 2009). When deciding a motion to dismiss under Rule 12(b)(1), the Court accepts the allegations in the plaintiff's complaint as true and draws all reasonable inferences in the plaintiff's favor. Long v. Shorebank Dev. Corp. , 182 F.3d 548, 554 (7th Cir. 1999). The burden is on the plaintiff to prove, by a preponderance of the evidence, that subject matter jurisdiction exists for his or her claims. See Lee v. City of Chicago , 330 F.3d 456, 468 (7th Cir. 2003).

Under Rule 12(b)(6), a party may move to dismiss a claim that does not state a right to relief. The Federal Rules of Civil Procedure require that a complaint provide the defendant with "fair notice of what the ... claim is and the grounds upon which it rests." Erickson v. Pardus , 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quotation and citation omitted). In reviewing the sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all permissible inferences in favor of the plaintiff. See Active Disposal Inc. v. City of Darien , 635 F.3d 883, 886 (7th Cir. 2011). A Rule 12(b)(6) motion to dismiss asks whether the complaint "contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly , 550 U.S. at 570, 127 S.Ct. 1955 ). The Court will not accept legal conclusions or conclusory allegations as sufficient to state a claim for relief. See McCauley v. City of Chicago , 671 F.3d 611, 617 (7th Cir. 2011). Factual allegations must plausibly state an entitlement to relief "to a degree that rises above the speculative level." Munson v. Gaetz , 673 F.3d 630, 633 (7th Cir. 2012). This plausibility determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

II. BACKGROUND

The following factual allegations are taken from the Complaint, and are accepted as true solely for the purpose of this Order.

A. Plaintiffs’ Membership in Beta Theta Pi

Plaintiffs are undergraduate students at IU and in the fall of 2018, they were all freshmen completing their first semester of study. [Filing No. 1 at 3.] As freshmen, Plaintiffs chose to take part in IU's campus traditions and activities, including IU's Greek life. [Filing No. 1 at 3.] Plaintiffs all chose to pledge the same fraternity, Beta Theta Pi. [Filing No. 1 at 3.]

B. CrimsonCards and Swipe Data

Plaintiffs were required to carry their CrimsonCard as a condition of their attendance at IU, and IU retains historical records of CrimsonCard usage. [Filing No. 1 at 4.] IU's records track every time a student "swipes" their CrimsonCard to gain access to a university building or to use a university facility ("Swipe Data"). [Filing No. 1 at 4.] IU's website explains: "CrimsonCard is much more than a photo ID. It's a print release card, keycard to authorized university buildings, library card, and if you're enrolled in a dining service plan, it's your meal ticket." [Filing No. 1 at 4.]

The back of the CrimsonCard provides:

INDIANA UNIVERSITY

If found, please contact: (317) 274-0400

Manage your account online: crimsoncard.iu.edu Use of this card constitutes acceptance of the CrimsonCard terms and conditions. This card is the property of Indiana University and is intended for use only by Indiana University and its affiliates. Unauthorized use, lending, or tampering with the card warrants confiscation and/or disciplinary action.

[Filing No. 20 at 11.]²

The CrimsonCard Terms and Conditions provide as follows:

The CrimsonCard ... is issued by [IU] to its students and employees, and others associated with [IU], to verify their identity and manage access to [IU] services and facilities.

The Card also functions as a stored value card, and is associated with an account, the "CrimsonAccount – CrimsonCash."

* * *

This Agreement is entered into between [IU] and each student....

In exchange for being issued a Card, Cardholder agrees to abide by the Official University Identification Card Policy (available on the University Policies website at http://policies.iu.edu ) (the "Policy") and to the following terms and conditions:

* * *

Use and Ownership

Cardholder understands and agrees that the Card is the property of [IU].

* * *

Damaged, Lost, Stolen, Misused or Expired Cards

Cardholder is responsible for care and protection of the Card. If the magnetic stripe, or any of the technology contained in or on the card, is damaged and becomes unreadable by any Card reader or terminal, Cardholder is required to obtain a replacement of the Card at Cardholder's expense....

[Filing No. 20-1 at 2-3.]

IU's Official University Identification Card Policy (UA-13) provides:

Policy Statement

[IU] issues Photo Identification Cards ... to employees, students, and others associated with [IU] to verify their identity and manage their access to [IU] services and facilities.

The ID card will be used to verify the identity of the bearer of the card in [IU] facilities when such identification is needed to be present at those facilities or on [IU] grounds.

* * *

Intended Use of the Official University Identification Card

* * *

2. The Official University Identification Card is intended for use as an electronic identification, validation, and authentication credential for authorized access to services and facilities. The Official University Identification Card is the property of the University and will be deactivated and/or invalidated by the University upon expiration of its intended use.

* * *

4. The Official University Identification Card may be used to verify the identity of the bearer of the card while on University grounds.

[Filing No. 20-2 at 4-6.]

IU's Management of Institutional Data Policy (DM-01) states:

Scope

This policy applies to all users of [IU] information and information technology resources regardless of affiliation, and irrespective of whether these resources are accessed from on-campus or off-campus locations.

This policy applies to all institutional data, and is to be followed by all those who capture data and manage administrative information systems using university assets.

Policy Statement

* * *

The permission to access institutional data should be granted to all eligible employees and designated appointees of the university for all legitimate university purposes.

[Filing No. 20-3 at 4.]

The Swipe Data includes the whole range of students’ movements and activities, including access to dorm buildings, individual dorm rooms, elevators, and dorm building common areas. [Filing No. 1 at 5.] The Swipe Data also reflects students’ movements around campus, including checking out library books, accessing academic buildings, accessing parking garages, using parking meters, purchasing meals at university dining halls, purchasing sodas and snacks from campus vending machines, using laundry machines, printing materials they need for class on university printers, and other daily activities. [Filing No. 1 at 5.] The Swipe Data is not limited to campus facilities, as the CrimsonCard operates as a payment card at numerous businesses near campus, including restaurants, grocery stores, pharmacies, airport shuttles, tanning salons, and wellness centers. [Filing No. 1 at 6.] The subject of a search of Swipe Data is not given "the opportunity to obtain precompliance review before a neutral decisionmaker." [Filing No. 1 at 6.]

C. IU's Investigation Into Hazing at Beta Theta Pi

During the fall 2018 semester, Beta Theta Pi was being investigated by IU for a suspected hazing incident. [Filing No. 1 at 3.] As part of its investigation, IU officials accessed Plaintiffs’ Swipe Data, which it retained for several months, to track Plaintiffs’ movements. [Filing No. 1 at 3-4.] Specifically, IU compared the Swipe Data associated with Plaintiffs to their testimony regarding their whereabouts at the time of the incident. [Filing No. 1 at 4.] Plaintiffs had testified that they were in their dorm rooms at the time of the suspected hazing incident. [Filing No. 1 at 4.] The investigation resulted in sanctions for Beta Theta Pi, but Plaintiffs were not found guilty of any wrongdoing. [...