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Doe v. The University of South Alabama

United States District Court, S.D. Alabama, Southern Division

September 8, 2017

JOHN DOE, Plaintiff,
v.
THE UNIVERSITY OF SOUTH ALABAMA; et al., Defendants.

          ORDER

          CALLIE V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Plaintiff's motion for Temporary Restraining Order (TRO) and Preliminary Injunction (Doc. 6), and Defendants' opposition thereto (Doc. 16). The Court finds that Plaintiff has not met his burden of showing a substantial likelihood of success on the merits. Therefore, the motion for TRO will be denied, but the Court will grant limited expedited discovery and set a hearing on Plaintiff's motion for Preliminary Injunction. The Court also finds it appropriate to grant Plaintiff's motion to proceed anonymously as John Doe. (Doc. 9).

         I. BACKGROUND

         This case arises from disciplinary actions that were initiated against Plaintiff John Doe, at The University of South Alabama (“South Alabama”). Plaintiff was enrolled as a student at South Alabama for the fall semester of 2016 and the spring semester of 2017 and he enrolled for the current fall semester of 2017. (Doc. 1, ¶ 3(a)). Plaintiff is the recipient of an Army ROTC scholarship through which he received full tuition scholarship and fees, as well as a monthly subsidence check and money for books. (Doc. 1, ¶ 3(a)).

         In October 2016, Plaintiff was notified that he had “been listed as the responsible person in a violation of the Code of Student Conduct, ” for engaging in sexual violence towards two individuals (hereafter referred to as Roe 1 and Roe 2). (Doc. 1-2, p. 89). The “sexual violence” he allegedly engaged in was defined or listed in the notice as “[a]ny physical sexual acts perpetrated against a person's will or where a person is incapable of giving consent.” (Doc. 1-2, p. 89). After a hearing, Plaintiff was notified that the University Disciplinary Committee (“UDC”) had found Plaintiff “responsible” for the violation and as a result there was a mutual “No Contact Order” between Plaintiff and Roe 1 and Roe 2; that Plaintiff was on conduct probation for the remainder of his academic career, that he was to complete 100 hours of community service, that his housing contract was terminated, and that he was to complete an educational module on prevention of sexual violence. (Doc. 1-4, p. 4). Plaintiff appealed the decision and Defendant Michael A. Mitchell, who is the Vice President for Student Affairs and Dean of Students and Deputy Title IX Coordinator for Students, upheld the decision but modified the sanction imposed and allowed Plaintiff to maintain campus residence. (Doc. 1-4, pp. 7-8).

         By letter dated November 16, 2016, Plaintiff was notified that a third female student (hereafter referred to as Roe 3) had reported to the Title IX Office that Plaintiff had engaged in sexual misconduct off campus, alleging that she was too incapacitated to provide consent for sex. (Doc. 1-4, p. 10-11). The notice stated that an impartial investigation of the allegation would be conducted. (Doc. 1-4, p. 10). Plaintiff then filed a sexual assault Title IX complaint against Roe 3 alleging that Roe 3 had transmitted a sexually transmitted disease to him. (Doc. 1, ¶ 160). Plaintiff requested that the Assistant Dean of Students, Defendant Andrea C. Agnew, recuse herself because Plaintiff asserted that he may call her as a witness, that she had exhibited animus and malice against Plaintiff in the prior hearing, and that she had personally participated in the investigation. (Doc. 1-4, p. 17). In response, Defendant Mitchell stated that though he “did not find any prior conduct by Dr. Agnew merits her removal from this proceeding Dr. Agnew has recused herself from today's proceeding.” (Doc. 1-4, p. 16). The two cross-complaints were heard by the same UDC panel. (Doc. 1, ¶ 174). After the hearing, Plaintiff was found “responsible” by the UDC of violating the Code of Student Conduct for engaging in “sexual violence.” (Doc. 1-4, pp. 19-20). Roe 3 was found “not responsible.” (Doc. 1-4, pp. 23-24). Plaintiff appealed the decisions. Defendant Mitchel upheld the finding that Roe 3 was “not responsible” but found that the charge against Plaintiff should be heard again during a new proceeding with a different committee. (Doc. 1-4, pp. 27-28). Defendant Mitchell stated that “the introduction of prior allegations against you was significant enough to warrant that this charge be heard again.” 9Doc. 1-4, p. 27). Defendant Mitchell stated that Defendant Agnew would preside over the new hearing because her “level of experience presiding over Title IX hearings will provide additional assurance that all required policies and procedures will be followed.” Defendant Mitchell further stated that he had “not found any indication that [Agnew] has any conflict of interest in such participation, as her role throughout these proceedings has been as a neutral investigator and facilitator.” (Doc. 1-4, p. 27).

         A new UDC panel heard the case on August 15, 2017 and concluded that Plaintiff was “responsible.” (Doc. 1-4, pp. 30-31). The Committee found that Roe 3 “did not provide consent to engage in sexual activity with the respondent as defined in the University of South Alabama Sexual Misconduct Policy & Complaint Resolution Procedures.” (Doc. 1-4, p. 31). As a result Plaintiff was suspended from South Alabama effective August 16, 2017 until the summer 2018 term and was prohibited from visiting the campus for any reason without prior clearance by the Office of the Dean of Students. (Doc. 1-4, p. 30). A mutual “No Contact Order” between Roe 3 and Plaintiff was also put in place and it was reiterated that Plaintiff was on conduct probation for the remainder of his academic career at South Alabama. (Doc. 1-4, p. 30). Plaintiff appealed the decision and on August 28, 2017, Mitchell upheld the decision and sanctions. (Doc. 1-4, pp. 33-34).

         In his motion for Temporary Restraining Order (TRO) and Preliminary Injunction, Plaintiff requests that this Court order South Alabama to 1) reinstate him immediately, 2) order South Alabama to place him immediately back into the ROTC program, 3) declare that Defendants' rules and policies and actions as applied were unconstitutional or in violation of the contractual equivalent of due process, good faith and fair dealing and fundamental fairness, and 4) enjoin the Defendants from releasing Plaintiff's identity and the results of the decisions made the basis of this action.

         II. LEGAL STANDARD

         This Court previously noted the applicable standard for preliminary injunctive relief in Hammock ex rel. Hammock v. Key, 93 F.Supp.2d 1222 (S.D. Ala. 2000):

A party seeking a preliminary injunction must establish the following four factors: (1) a substantial likelihood of success on the merits; (2) a threat of irreparable injury; (3) that its own injury would outweigh the injury to the nonmovant; and (4) that the injunction would not disserve the public interest. Tefel v. Reno, 180 F.3d 1286, 1295 (11th Cir.1999); McDonald's Corp. v. Robertson, 147 F.3d 1301, 1306 (11th Cir.1998). The Court should be mindful that a preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant has clearly satisfied the burden of persuasion as to the four requisites. McDonald's, 147 F.3d at 1306; Northeastern Fl. Chapter of the Ass'n of Gen. Contractors of Am. v. City of Jacksonville, 896 F.2d 1283, 1285 (11th Cir.1990).

Id. at 1226-27. The same standard applies to a request for a temporary restraining order as to a request for a preliminary injunction. Morgan Stanley DW Inc., v. Frisby, 163 F.Supp.2d 1371, 1374 (N.D.Ga. 2001) (citing Ingram v. Ault, 50 F.3d 898, 900 (11th Cir.1995)). Upon consideration of the evidence presented, the Court concludes that plaintiff has not met this burden.

         III. ANALYSIS

         Plaintiff claims he will be irreparably injured if he is not allowed to continue in his classes this semester as an ROTC scholarship student. He was prohibited from doing so by South Alabama as a sanction after being found “responsible” for sexual misconduct towards Roe 3 in the August 15, 2017 discipline hearing. The decision was upheld on appeal by Defendant Mitchell on August 28, 2017. Plaintiff also claims he would be ...


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