United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge
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. 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.
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
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.
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.
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.
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.
there were reasons to doubt the reliability of some of
plaintiffs evidence. Roe provided Millie a screenshot of
incriminating iMessages 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.
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; 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.
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.
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
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
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.
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).
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)).
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.
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
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:
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)).
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. Defendants have the burden to establish
that plaintiff had the opportunity to litigate the claims in
the writ of review action.
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").
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.
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). 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.
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.
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.
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. 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).
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
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.
(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.
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
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.