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Doe v. University of Oregon

United States District Court, D. Oregon, Eugene Division

March 26, 2018

JOHN DOE, Plaintiff,
UNIVERSITY OF OREGON; SANDY WEINTRAUB, an individual acting in his personal capacity; CAROL MILLIE, an individual acting in her personal capacity; and ROBIN HOLMES, an individual acting in her personal capacity, Defendants.


          Ann Aiken United States District Judge

         Plaintiff John Doe, a student at defendant University of Oregon ("the University"), brought suit against the University and individual defendants Sandy Weintraub, Carol Millie, and Robin Holmes. In 2016, plaintiff was accused of sexually assaulting fellow student Jane Roe.[1] After an investigation and a hearing, the University suspended plaintiff for one year. The Lane County Circuit Court later vacated that suspension, finding that the University had violated its own investigatory and adjudicatory procedures. In this action, plaintiff alleges that defendants violated his rights under the Due Process and Equal Protection Clauses of the United States Constitution, the Equal Rights Amendment to the Oregon Constitution, and Title IX of the Education Amendments of 1972. He also asserts state law claims of breach of contract, breach of the duty of good faith and fair dealing, and unlawful trade practices.

         Defendants moved to dismiss all claims. Oral arguments were held on the motion on January 29, 2018. For the reasons set forth below, defendants' motion to dismiss is granted in part and denied in part, BACKGROUND

         Accepting plaintiffs allegations as true for the purposes of the motion to dismiss, the relevant facts are as follows, Jane Roe and plaintiff met in the fall of 2015, when they were both attending the University. They began a sexual relationship. About halfway through the fall term, they stopped having sex because plaintiff wanted to be in a serious relationship, whereas Roe wanted something more casual. Shortly after they stopped having sex, plaintiff, who is a "germaphobe, " became so worried that Roe had infected him with the heipes virus that he visited the student health facility and texted his mother about his concerns. Compl. ¶ 37. As a result, he was no longer interested in having sex with Roe, Plaintiff and Roe began talking again during the winter term of 2016. On February 11, 2016, Roe and plaintiff met for coffee and took a walk together. The next day, Roe contacted plaintiff, who lived in the same dorm, because she was "highly intoxicated and afraid that, if she fell asleep, she might inhale her own vomit." Id. ¶ 40. Plaintiff routinely assisted other students who were under the influence of alcohol and could not take care of themselves, Plaintiff agreed to watch over Roe while she slept. Plaintiff slept in his own bed while Roe slept in his roommate's bed. When plaintiff woke up the next morning, Roe had already left.

         Four days later, Roe filed a report accusing plaintiff of making unwanted sexual advances during the February 11 walk and having non-consensual sexual contact with her early the morning of February 13. Plaintiff denied all allegations. Because plaintiff and Roe shared a residence hall, the University required plaintiff to immediately move to a different building pending an investigation. Defendant Sandy Weintraub, the Director of Student Conduct & Community Standards at the University, sustained that emergency action after a hearing.

         The University launched an investigation, which was conducted by defendant Carol Millie, the Senior Equal Opportunity Specialist in the University's Office of Affirmative Action and Equal Opportunity. During the investigation, Millie repeatedly explained away inconsistencies in Roe's account, while simultaneously ignoring evidence tending to corroborate plaintiffs version of events, For example, Roe's story about important events changed as the investigation proceeded. She originally told Millie that plaintiff had merely "hit on her" and tried to get her to "do stuff during the walk, but she later stated that plaintiff had grabbed her buttocks, picked her up and threw her over his shoulder, and frightened her so much that she had to run away. Id. ¶ 66. Regarding the assault itself, Roe at first reported that plaintiff pulled her from the dorm bed onto the floor and on top of him, then began kissing her and putting his hand down her pants. In her second interview with Millie, however, Roe mentioned new details for the first time. She stated that plaintiff was slapping her awake during the assault and interrogating her about how many sexual partners she had.

         Roe's testimony about the timing of the assault was also inconsistent with available evidence. At 3:24 A.M. the morning of February 13, Roe texted her ex-boyfriend, "Just for documentation, can you make it known I was almost raped tonight?" Id., ¶ 54. Roe told University investigators that she had sent the message immediately after the alleged assault. However, two witnesses who were playing video games in the dorm room opposite plaintiffs that night reported that the door to plaintiffs room remained partially open from the time plaintiff and Roe entered the room until well past 3:24 A.M. Those witnesses testified that they had the sound turned down low and their door was open, so they would have been able to hear slapping, yelling, or other loud noises; they reported that they heard nothing. Millie concluded that the assault must have taken place "much earlier" than Roe remembered, and that the text message did not immediately follow the assault. Id. ¶ 74.

         Furthermore, there were reasons to doubt the reliability of some of plaintiffs evidence. Roe provided Millie a screenshot of incriminating iMessages[2] allegedly received from plaintiff the morning after the assault, but asserted she could not produce the original messages because they had been automatically deleted when she erased plaintiffs contact information from her phone. Plaintiff produced expert testimony that iMessages are not automatically erased when an individual removes a contact from her iPhone, Confronted with that evidence, Roe changed her story, and explained that she had intentionally destroyed the iMessages.

         The University held an administrative hearing. Plaintiff alleges that Millie violated University procedures in numerous ways in connection with the hearing, including by failing to provide plaintiff with advance copies of exhibits from Roe's attorney prior to that hearing; improperly telling Roe's advisor that she could decline to answer plaintiffs questions at the hearing;[3] allowing Roe to introduce new evidence into the record after the conclusion of the hearing without permitting plaintiff to respond; preventing plaintiff from submitting allowable evidence; and admitting expert evidence without allowing plaintiff a chance to respond.

         Plaintiff passed a total of four polygraph tests concerning the incident; two that concluded he was being truthful when he said he had not had sex with Roe on the night of February 12/moming of February 13, and two that concluded he was being truthful in stating that he never sent Roe iMessages or social media messages about the alleged assault.

         After the hearing, Millie concluded that plaintiff had violated the University's sexual harassment policies and suspended him for one year; after an internal appeal, the University upheld that decision. In issuing her decision, Millie relied on an undisclosed expert's opinion that trauma can affect victims' memories in a way that could explain the inconsistencies in Roe's statements. This created a "Catch-22 situation" in which plaintiff was unable to establish his innocence because Roe would be believed whether her story was consistent or not. Id. ¶ 77. Plaintiff never had an opportunity to respond to the expert opinion. Millie did not discuss or even mention the polygraph results.

         After the University upheld the suspension, plaintiff filed a petition for writ of review in Lane County Circuit Court, seeking reversal of his suspension and alleging due process, equal protection, and Title IX violations by the University and individual defendants. The courthouse rejected plaintiffs filing and informed plaintiff that his civil rights and other affirmative claims were beyond the scope of a writ of review petition and must be filed separately in a separate civil complaint. Plaintiff complied and submitted only the writ of review petition.

         The circuit court ultimately agreed with plaintiff regarding the University's disciplinary proceedings and vacated plaintiffs suspension. The court's decision to vacate plaintiffs suspension rested on its finding that Mille had violated University procedure in her investigation and adjudication of the sexual misconduct allegations. Plaintiff then filed this action, asserting violations of his rights under federal and state law. He seeks compensatory damages, punitive damages, and attorney's fees.


         Where the plaintiff "fail[s] to state a claim upon which relief can be granted, " the court must dismiss the action. Fed. R, Civ. P. 12(b)(6). A court considering a motion to dismiss for failure to state a claim construes the complaint in favor of the plaintiff and takes the complaint's factual allegations as true. Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content, ' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret Serv.t 572 F.3d 962, 969 (9th Cir. 2009).

         "[A] plaintiffs obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v, Iqbal, 556 U.S. 662, 678 (2009). A court cannot assume unstated facts or draw unwarranted conclusions, IqbaU 556 U.S. at 679. "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Twombly, 550 U.S. at 563. "A complaint or a claim in a complaint may be dismissed as a matter of law for two reasons: (1) lack of cognizable legal theory or (2) insufficient facts under a cognizable legal theory." Harrell v. Southern. Oregon Univ., 2009 WL 321014, *2 (D. Or. Feb. 9, 2009) (citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 533-34 (9th Cir. 1984)).


         Defendants make several arguments in support of their motion to dismiss. I begin by addressing their arguments that this action must be dismissed in its entirety under the doctrine of claim preclusion, that the state law doctrines of exclusive remedy and election of remedy bar the assertion of certain state law claims, and that plaintiff has failed to allege sufficient facts to show that two of the three individual defendants were personally involved in any violation of his constitutional rights. I then address defendants' specific challenges to each of plaintiff's remaining federal and state claims.

         I, Preliminary Matters

         A. Claim Preclusion

         As explained above, plaintiff appealed his suspension via a writ of review to the Lane County Circuit Court in September 2016, resulting in a ruling in his favor in December 2016. Defendants assert that claim preclusion requires dismissal of all of plaintiff s claims against the University because they are based on the same factual transactions underlying the prior state court case. Defendants contend that plaintiff is now barred from seeking additional or alternative remedies in federal court which could have been sought in the previous action.

         In determining the preclusive effect of a state court judgment, federal courts follow the state's rules of preclusion. White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012). In Oregon:

         A plaintiff who has prosecuted one action against a defendant through to a final judgment is barred ., from prosecuting another action against the same defendant when the claim in the second action is one which is based on the same factual transaction that was at issue in the first, seeks a remedy additional or alternative to the one sought earlier, and is of such a nature as could have been joined in the first action, Drews v. EBI Cos., 795 P.2d 531, 535 (Or. 1990) (quoting Rennie v. Freeway Transport, 656 P.2d 919, 921 (1982)). Unlike issue preclusion, "[c]laim preclusion does not require actual litigation of an issue of fact or law[.]" Id. However, "[t]he opportunity to litigate is required, whether or not it is used, " Id. (emphasis added). "The burden to establish the requisite elements of issue or claim preclusion rests with the one seeking to invoke that rule." D'Amico ex rel. Tracey v. Ellinwood, 149 P.3d 277, 283 (Or. Ct. App. 2006) (citing State Farm Fire & Cas, Co. v. Century Home Components, Inc., 550 P.2d 1185, 1188 (Or. 1976)).

         Here, it is undisputed that plaintiffs claims in this lawsuit arise from the same factual transaction underlying his writ of review in state court. It is also undisputed that plaintiff makes new claims for money damages, which constitute a remedy additional or alternative to the remedy obtained in state court: the vacation of his suspension. Whether plaintiffs claims in this action are barred, therefore, hinges upon whether or not those claims could have been joined in the prior action.[4] Defendants have the burden to establish that plaintiff had the opportunity to litigate the claims in the writ of review action.

         A petition for writ of review is adjudicated according to strict statutory standards: the state court examines the closed record to determine if the agency has exceeded its jurisdiction, failed to follow its own procedures, made a finding unsupported by substantial evidence, misconstrued the governing law, or rendered an unconstitutional decision. Or. Rev. Stat. § 34.040, Remedies are limited; the only monetary damages the court can award on a writ of review are restitution. Id. § 34.100. And the timeline is accelerated; a writ of review petition must be filed within sixty days of the issuance of the challenged decision. Id. § 34, 030. In short, in contrast to a typical lawsuit, the writ of review procedure is designed to deliver relatively swift justice. Unlike some jurisdictions, Oregon courts do not require exhaustion of the writ of review procedure before filing affirmative civil rights claims. Compare Maddox v. Clackamas Cty. Sch. Dist. No. 25, 643 P.2d 1253, 1257 (Or. 1982) with Doe v. Regents of Univ. of Cal, 2017 WL 4618591, *10 (CD. Cal. June 8, 2017). But Oregon courts have acknowledged that a federal civil rights action will often follow the narrower writ of review proceeding. See Maddox, 643 P.2d at 1257 (stating that, due to the limited remedies available in a writ of review proceeding, "resort to a § 1983 suit would eventually be necessary" in order to afford the plaintiff access to "the full scope of damages").

         As explained above, plaintiff initially attempted to assert the claims at issue in this suit in his petition for writ of review. The Lane County Circuit Court rejected the initial filing, explaining in an email and by telephone that the "Complaint and Petition for Writ of Review are separate documents and should be filed accordingly." Stamm Decl. Ex. B at 1. Plaintiff argues that this evidence establishes that the third element of claim preclusion does not apply; there was no opportunity to litigate the claims asserted here in the state court action.

         Defendants contend that, notwithstanding the filing rejection, the writ of review proceeding has claim preclusive effect, Defendants cite four cases in support of this argument. Three of those cases are not about the doctrine of claim preclusion; they simply are cases in which a writ of review and other claims were adjudicated together, either because the writ of review request was included in the original complaint or because a writ of review proceeding was consolidated with a separate proceeding in which the plaintiff asserted other claims. See Frevach Land Co. v. Multnomah Cty., Dep't of Env'tl Servs., 2000 WL 1875839, *1 (D. Or. Dec. 21, 2000); Spivak v. Marriott, 159 P.3d 1192, 1194 (Or Ct. App. 2007); Pangle v. Bend-Lapine School District, 10 P.3d 275, 277 (Or. Ct. App. 2000).[5] Those cases establish that Oregon courts sometimes have adjudicated writs of review and other claims in the same action. But they cannot overcome plaintiffs evidence that the Lane County Circuit Court rejected the joint filing in his particular case.

         The fourth case, O'Connell-Babcock v. Multnomah County, Oregon, 2009 WL 1139441 (D. Or. Apr. 24, 2009), directly addresses the preclusive effect of a state-court writ of review proceeding on a subsequent federal action. But O'Connell-Babcock is distinguishable. In that case, the Multnomah County Sheriff issued a notice barring the plaintiff from entering the premises of any Multnomah County Animal Service facility for one year. O'Connell-Babcock, 2009 WL 1139441 at *2. The plaintiff filed a complaint in state court, seeking a writ of review and a declaratory judgment. Id. at *1. She specifically argued that the ban violated her constitutional free speech rights under the Oregon Constitution. Id. After the state court denied the petition for a writ of review and sustained the exclusion order, the plaintiff filed suit in federal court, asserting claims under § 1983 for violations of her First and Fourteenth Amendment rights. Id. at *3. This Court held that the plaintiffs civil rights claims were precluded because those claims "could properly have been raised and adjudicated in state court and could have been joined in the state court action." Id. at *5. Critically, unlike in this case, there is no indication that the state court expressly rejected an attempt to assert § 1983 claims in the same action as a writ of review.

         Defendants aver that "it is clear from the clerk's communication with Plaintiffs counsel that the complaint was rejected because it needed to be filed separately from the writ of review, not because the claims alleged in the complaint could not be brought in the same action as the writ of review." Defs.' Reply Supp. Mot. Dismiss 4. Citing Spivak, defendants assert that plaintiff should have re-filed his present claims via a separate state-court complaint and then sought consolidation with the writ of review action. In other words, defendants' theory is that plaintiff should have known that he could have litigated the writ of review and civil rights claims together through a little-known back-door route to a consolidated action to which the circuit court clerk made no reference.

         There are good reasons that a state court might reject such a request for consolidation; as explained above, there are significant differences between a writ of review proceeding and an affirmative civil rights suit in terms of scope, remedy, and timeframe. In the end, it does not matter if the Lane County Circuit Court rejected the joint filing for sound policy reasons or due to ministerial error; the filing was rejected.[6] Claim preclusion requires more than the technical opportunity to litigate; the opportunity must have been "full and fair." Aguirre v. Albertson 's, Inc., 117 P.3d 1012, 1022 (Or. Ct. App. 2005).

         In acknowledgement of the "full and fair opportunity" requirement, many jurisdictions recognize a "formal barriers" exception to claim preclusion. See, e.g., Breaker v. Bemidji State Univ., 899 N.W.2d 515, 519 (Minn.Ct.App. 2017); Davis v. City of Memphis, 2017 WL 634780, *8 (Tenn. Ct. App. Feb. 16, 2017); Peterson v. Newton, 307 P.3d 1020, 1023 (Ariz.Ct.App. 2013); Ohio Ky. Oil Corp. v. Nolfi, 5 N.E.3d 683, 691 (Ohio Ct. App. 2013); Levenson v. FeuerCarris v. John R, Thomas & Assocs., P.C., 896 P.2d 522, 530 (Okla. 1995). The "formal barriers" exception comes from the Restatement of Judgments, which explains that

The general rule of [claim preclusion] is largely predicated on the assumption that the jurisdiction in which the first judgment was rendered was one which put no formal barriers in the way of a litigant's presenting to a court in one action the entire claim including any theories of recovery or demands for relief that might have been available to him under applicable law. When such formal barriers in fact existed and were operative against plaintiff in the first action, it is unfair to preclude him from a second action in which he can present those phases of the claim that he was disabled from presenting in the first.
The formal barriers referred to may stem from limitations on the competency of the system of courts in which the first action was instituted, or from the persistence in the system of courts of older modes of procedure-the forms of action or the separation of law from equity or vestigial procedural doctrines associated with either.

         Restatement (Second) of Judgments § 26(1)(c) & cmt. c(1) (Am. Law Inst. 1982). The Restatement goes on to identify, as a specific example of a "formal barrier, " a court's adherence to "older modes of procedure" requiring claims in law and equity to be pursued in separate actions. Id. cmt. c(2). That is closely analogous to what happened here: the Lane County Circuit Court, applying formal procedural requirements, informed plaintiff he could not seek a writ of a review and assert claims for damages in the same action.

         Although the Oregon courts have not expressly addressed whether the "formal barriers" exception to claim preclusion applies in Oregon, the Oregon Supreme Court has endorsed the reasoning underlying the exception. In Rennie v. Freeway Transport, 656 P.2d 919, 924 (Or. 1982), the court stated that the general rule "is that a plaintiff must attempt to have all claims against a defendant arising out of one transaction adjudicated in one court proceeding, at least insofar as possible, despite the fact that various claims may be based on different sources of law." But in announcing that rule, the court emphasized-with a citation by analogy to the "formal barriers" sections of the Restatement-that the general rule would not apply "where the federal court, after a proper request, expressly declined to exercise jurisdiction over the state law claims." Rennie, 656 P, 2d at 924. I consider Retrnie sufficient evidence that, faced with a case presenting the question, the Oregon Supreme Court would adopt the "formal barriers" exception to claim preclusion.

         The commonsense interpretation of the Lane County Circuit Court's rejection email is that the writ of review and other claims could not be adjudicated in the same action. That rejection arose out of procedural rules that operated as a formal barrier, interfering with plaintiffs full and fair opportunity to litigate. I conclude that, on the factual record presented here, claim preclusion does not apply, B, Exclusive Remedy & Election of Remedy Defendants next contend that plaintiffs state-law claims for violation of Oregon's Equal Rights Amendment, breach of contract, and breach of the duty of good faith and fair dealing must be dismissed because the Oregon Legislature has created an exclusive remedy for wrongful suspension decisions by the University: the writ of review procedure, of which plaintiff already has availed himself-and prevailed. Alternatively, defendants contend that, under Oregon law, plaintiff is barred from asserting his contract claims in this lawsuit because he elected to appeal his suspension through the writ of review process rather than immediately suing for breach of contract When a plaintiff asserts a state-law claim in federal court, the court must "approximate state law as closely as possible in order to make sure that the vindication of a state right is without discrimination because of the federal forum." Gee v. Tenneco, Inc., 615 F.2d 857, 861 (9th Cir. 1980). Federal courts are bound by the pronouncements of the state's highest court on applicable state law. Davis v. Metro Prods., Inc., 885 F.2d 515, 524 (9th Cir. 1989). "Where the state's highest court has not yet decided an issue, the task of the federal court is to predict how the state high court would resolve it." Dimidowich v. Bell & Howell, 803 F.2d 1473, 1482 (9th Cir. 1986), modified at 810 F.2d 1517 (9th Cir. 1987). In order to make such a prediction, federal courts look to state law without predicting potential changes in that law. Moore v. R.G. Indus., Inc., 789 F.2d 1326, 1327 (9th Cir. 1986).

         1. Exc ...

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