United States District Court, S.D. Alabama, Southern Division
V. S. GRANADE SENIOR UNITED STATES DISTRICT JUDGE
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).
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)).
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).
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).
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).
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.
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.
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 ...