Sterrett v. Cowan

• Decision Date: 04 February 2015
• Docket Number: Case No. 14–cv–11619.
• Citation: 85 F.Supp.3d 916
• Parties: Drew STERRETT, Plaintiff, v. Heather COWAN, et al., Defendants.
• Court: U.S. District Court — Eastern District of Michigan

85 F.Supp.3d 916

Drew STERRETT, Plaintiff

v.Heather COWAN, et al., Defendants.

Case No. 14–cv–11619.

United States District Court, E.D. Michigan, Southern Division.

Signed Feb. 4, 2015.

Carol A. Laughbaum, Nicholas M. Saleh, Sarah Prescott, Deborah L. Gordon, Deborah L. Gordon Assoc., Bloomfield Hills, MI, for Plaintiff.

David D. O'Brien, Miller, Canfield, Ann Arbor, MI, Paul D. Hudson, Miller, Canfield, Paddock & Stone, P.L.C., Kalamazoo, MI, Thomas W. Cranmer, Miller Canfield Paddock and Stone PLC, Troy, MI, for Defendants.

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS, DENYING MOTION TO AMEND COMPLAINT, MOOTING APPEAL, DENYING MOTION TO COMPEL COMPLETE DEPOSITION and SETTING SCHEDULING CONFERENCE

DENISE PAGE HOOD, District Judge.

I. BACKGROUND

A. Procedural Posture

On April 23, 2014, Plaintiff Drew Sterrett filed the instant action against Defendants Heather Cowan, Jay Wilgus, Stacy Vander Velde, Theodore Spenser, Susan Pritzel, Mikiko Senja, E. Royster Harper, Malinda Matney, Anthony Walesby and Laura Blake Jones alleging a two-counts: 42 U.S.C. § 1983 —Fourteenth Amendment Due Process against all Defendants for money damages in their personal capacities and for injunctive relief in their official capacities (Count I) and 42 U.S.C. § 1983 —First Amendment Free Speech against Defendants Cowan, Vander Velde, and Wilgus for money damages in their personal capacities and for injunctive relief in their official capacities (Count II).

In lieu of an Answer, Defendants filed a Motion to Dismiss Sterrett's Complaint under the Rules of Civil Procedure Rule 12(b) (1) for lack of subject matter jurisdiction and 12(b)(6) for failure to state a claim upon which relief may be granted. Sterrett filed a response to the motion, and Defendants filed a reply to Sterrett's response. After setting the matter for a hearing, the Court issued a Notice of Determination of Motion Without Oral Argument. A Status Conference was held with the parties on July 28, 2014 wherein Sterrett's counsel expressed her strong position to proceed with discovery despite the pending Motion to Dismiss. The defense opposed Sterrett's request to proceed with discovery and requested that the discovery issues should take its course, which were before the Magistrate Judge.¹ The parties agreed to submit their arguments on the Motion to Dismiss on briefs.

B. Factual Allegations in the Complaint

In the Fall of 2011, Plaintiff began his freshman year as an undergraduate student at the University of Michigan, School of Engineering. (Comp., ¶ 19) Plaintiff was also admitted to the Michigan Research Community (“MRC”), a “learning community” offering incoming students a research partnership with a faculty member and the ability to be part of a community of other like-minded University of Michigan students. (Comp., ¶ 20) As part of the MRC, Plaintiff lived on campus with other MRC students in the Mosher–Jordan Residence Hall. (Comp., ¶ 21) Plaintiff was assigned a roommate, Z.L., whom he had not known previously. (Comp., ¶ 22) In May 2012, Sterrett completed his freshman year and left the campus. (Comp., ¶ 24)

On August 6, 2012, Sterrett was contacted to set up an interview later that day with Cowan, an Equal Opportunity Specialist at the University, regarding an undefined student complaint against him. (Comp., ¶¶ 5, 25) Later that day, Cowan began interviewing Sterrett via the audio/video remote hook-up Skype. (Comp., ¶ 26) Sterrett claims that with no notice of the specific charges or complaint against him, he agreed to proceed with the interview. (Comp., ¶ 30) Sterrett claims that at no point during the call/interview was he given notice of the specific allegations which had been made against him. (Comp., ¶ 31) Instead, Sterrett claims he “eventually gleaned that it involved unspecified sexual misconduct allegations made by a fellow MRC member and friend, C.B., the Complainant.” (Comp., ¶ 31) Sterrett “learned that Complainant had made a verbal complaint to Cowan and that Cowan was also assigned to ‘investigate’ ” the Complainant's allegations. (Comp., ¶ 31) During the phone interview, Sterrett provided detailed information regarding the sexual encounter between Complainant and Sterrett on March 16–17, 2012. (Comp., ¶ 32a.–x.) Sterrett claims that prior to being interviewed on August 6, 2012, he was never provided with a written statement of the allegations against him; nor was he ever advised verbally of the allegations against him. (Comp., ¶ 36)

On September 27, 2012, Sterrett received Cowan's typed summary of her verbal interview with Sterrett which took place on August 6, 2012. (Comp., ¶ 56) Cowan's activity log noted that she interviewed four unnamed witnesses on August 8, August 10, August 23 and August 25. (Comp., ¶ 57) Cowan produced on November 5, 2012, a one page “Summary of Witness Testimony and Other Evidence” to Sterrett. (Comp., ¶ 80)

On November 9, 2012, Sterrett responded to the Summary with a five-page single spaced document, listing concerns about key omitted facts and information, significant due process violations and raising specific questions. (Comp., ¶ 81) Sterrett provided a paragraph by paragraph response/rebuttal to each alleged statement made by the unnamed witnesses. (Comp., ¶ 82) Cowan responded to Sterrett's response on November 19, 2012. (Comp., ¶ 84) Cowan issued a Draft Sexual Misconduct Report on November 20, 2012. (Comp., ¶ 85) Sterrett responded to the Draft on November 25, 2012, pointing out serious flaws, citing substantial additional relevant testimony and raising due process concerns. (Comp., ¶ 88) Sterrett indicated that he was willing to testify under oath. (Comp., ¶ 89)

On November 30, 2012, the Final Report was issued by Cowan who found that Sterrett engaged in sexual intercourse with the Complainant without her consent and that the activity was so severe as to create a hostile environment. (Comp., ¶ 93) Cowan determined that Sterrett's behavior constituted sexual misconduct and that he subjected Complainant to sexual misconduct in violation of University policy. (Comp., ¶ 93) Sterrett challenged, in writing, the credibility and truthfulness of the unnamed witness. (Comp., ¶ 103)

On December 6, 2012, Sterrett met with Vander Velde, the Associate Director for the Office of Student Conflict Resolution at the University (“OSCR”). (Comp., ¶¶ 7, 117). At the meeting, Sterrett indicated to Vander Velde he was innocent and that a terrible mistake had been made. (Comp., ¶ 117) Sterrett's representative thereafter sent a seven page letter to Defendants on December 11, 2012 identifying significant shortcomings in the investigation and denials of due process. (Comp., ¶ 118) Cowan re-interviewed Sterrett's roommate on December 18, 2012 and issued an “Addendum to Sexual Misconduct Investigation Report Issued November 30, 2012,” but did not alter the conclusion of the November 30, 2012 Report. (Comp., ¶¶ 120, 125)

Vander Welde provided Sterrett a Proposed “Resolution Agreement” decided upon by Matney, a Resolution Officer at the University, and Blake–Jones, the Dean of Students at the University, asking Sterrett to agree to be suspended from the University until May 1, 2016, and if re-enrolled at that time, Sterrett would be placed on disciplinary probation for another year. (Comp., ¶¶ 12, 14, 134) The sexual misconduct finding would remain permanently on Sterrett's educational record. (Comp., ¶ 134) Sterrett declined to agree to the proposed “Resolution Agreement” which would require him to admit to “sexual misconduct.” (Comp., ¶ 136) On January 17, 2013, Sterrett's counsel sent another letter outlining the flaws in the investigation and the denial of due process. (Comp., ¶ 130) Sterrett also submitted multiple affidavits to correct the record and supply evidence missed by Cowan. (Comp., ¶ 131)

On February 1, 2013, Sterrett received Royster–Harper's (Vice President of Student Affairs at the University) decision upholding Cowan's Report and Findings, and issuing sanctions against Sterrett, suspending him until July 2016. (Comp., ¶¶ 11, 137) Matney, Blake–Jones and Royster–Harper approved the sanctions without any analysis and ignored due process violations according to Sterrett. (Comp., ¶ 138)

On May 15, 2013, Sterrett submitted his appeal to the Appeals Board (Spencer, Pritzel, and Senja). (Comp., ¶¶ 8–10, 139) According to Sterrett, the Appeal was limited to: 1) whether there had been a material deviation from written procedures that substantially affected due process; 2) whether the sanctions were appropriate; 3) whether there was new evidence that could have reasonably affected the findings of the Report. (Comp., ¶ 139) On appeal, Sterrett presented a detailed statement proving that the findings were biased, were not properly arrived at, materially deviated from written procedures, lacked fundamental fairness, were reckless, and substantially affected due process. (Comp., ¶ 140) Sterrett also submitted four affidavits from witnesses with new, relevant information which could have reasonably affected the findings of the Report, and a one and a half page document requesting to be allowed to make a presentation and answer questions under oath. (Comp., ¶¶ 141–42) Sterrett's request to appear before the Appeals Board was denied. (Comp., ¶ 143) Sterrett claims the decision of the Appeals Board was a “rubber-stamp” of the flaws investigation and Report and Addendum, but the Appeals Board “lessened” the period of suspension. (Comp., ¶ 147) In order to return to the University, Sterrett would have to admit to sexual misconduct, and agree to the sanctions, which would remain permanently on his record, which he did not do so. (Comp., ¶ 147) Sterrett's current status with the University is that he is not in good standing and has engaged in a violation of the University's sexual misconduct policy. (Comp., ¶ 148)

II. MOTION TO DISMISS

A. Standard of Review

Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for...