United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION & ORDER
K. CALDWELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
Kentucky University expelled Zachary Herrell after its Office
of Equity and Inclusion determined that Herrell committed
sexual misconduct in violation of the University's
Non-Discrimination and Harassment Policy. Herrell did not
participate in the investigation or the sanctioning phase of
the proceedings. Herrell now seeks to enjoin the
University's sanctions hearing and to compel defendant
President Michael T. Benson, the president of the University,
to make a recommendation to the EKU Board of Regents to issue
to Herrell his degree, which EKU has not conferred as a
result of his expulsion. This refusal, in Herrell's view,
violates his due process rights under the Fourteenth
Amendment. The defendants, President Benson and Joslyn
Glover, EKUs Title IX Coordinator, have moved pursuant to
Federal Rule of Civil Procedure 12(b)(6) to dismiss
Herrell's complaint. Because Herrell's first claim is
moot and the second claim fails as a matter of law,
Herrell's complaint will be dismissed and the
defendants' motion to dismiss (DE 6) will be granted.
August 2010, Zachary Herrell enrolled as a freshman at
Eastern Kentucky University, a public institution in
Richmond, Kentucky. (Am. Compl. ¶ 5). On April 20, 2015,
shortly before he was set to graduate with a Bachelor of
Business Administration in Marketing degree, Herrell was
accused of having non-consensual sexual intercourse with
another student at an off-campus student housing complex.
(Am. Compl. ¶¶ 7-8). Law enforcement arrested and
charged Herrell with rape and attempted sodomy the same day.
(Am. Compl. ¶ 11). On June, 122015, a Madison County
grand jury indicted Herrell on rape and sodomy charges. (Am.
Compl. ¶ 13).
instituted its own investigation of the incident after the
University received a complaint from the student with whom
Herrell had allegedly had non-consensual sexual intercourse.
The student accused Herrell of violating the University's
Non-Discrimination and Harassment Policy, and EKUs Office of
Equity and Inclusion (OEI) launched an investigation in order
to determine whether Herrell committed sexual misconduct in
violation of the Policy. Herrell was notified of the OEI
investigation, but chose not to participate in the
investigative process over a concern that "any
participation in the [University] investigation would lead to
the violation of his [Fifth Amendment rights]" in a
pending criminal investigation. (Am. Compl. ¶¶ 13
-14). The OEI investigation continued despite Herrell's
two-month investigation, the OEI found Herrell to have
violated the sexual misconduct provision of the
University's Non-Discrimination and Harassment Policy and
issued an Investigative Reporting finding. EKU notified
Herrell of the finding on June 25, 2015, and, as the Policy
required, gave Herrell with ten days in which to provide the
OEI with any additional information before EKU officially
closed the investigation. Herrell did not provide any
information to the OEI. The finding of a violation became
final and non- appealable after the ten-day window expired.
EKU then notified Herrell on July 10, 2015, that a sanctions
hearing would be held on July 27, 2015, to determine
Herrell's standing as a student at EKU. Herrell again
refused to participate, citing concerns over his rights
against self-incrimination. (Am. Compl. 14).
attempt to delay the sanctions hearing while he litigated his
pending criminal charges, Herrell filed a complaint against
EKU, along with a motion seeking to stay the Sanctions
Hearing, on June 21, 2015, in Madison County Circuit Court.
EKU postponed the Sanctions Hearing in light of the motion,
but the state court did not set the motion for a hearing or
otherwise rule on it. EKU then filed a motion to dismiss the
state court action, to which Herrell responded with a motion
to amend his complaint to add Michael Benson, EKU's
President, and Joslyn Glover, EKUs Title IX Coordinator-both
in their official capacities-to the suit. All parties
tendered an agreed motion to the state court to allow Herrell
to pursue injunctive relief to (1) stay the sanctions hearing
and (2) compel President Benson to make a recommendation to
the EKU Board of Regents so as to require the Board of
Regents to issue to Herrell his degree, which EKU had refused
to confer due to the OEI investigation. The state court did
not enter the agreed order or take any other action
on the case.
previously postponed the sanction hearing and seeing no
action from the state court, EKU decided to move forward with
the disciplinary process and notified Herrell that a sanction
hearing would be held on September 30, 2015, at 3:30 p.m.
Herrell again attempted to stop the sanctions hearing. On
September 28, 2015, two days before the hearing, Herrell
filed a proposed order on his previously pending ex
parte motion for injunctive relief in state court. Once
again, the state court never scheduled the matter for a
hearing and it never entered an order to stay the sanctions
Equity Complaint Council convened on September 30, 2015,
without Herrell in attendance. The Council expelled Herrell
from EKU, evicted him from University housing, and
permanently barred him from EKU's campus. Herrell did not
appeal the sanctions decision of the Equity Complaint
Council. Although Herrell has completed all of the academic
requirements to obtain his degree, the University has not
awarded a degree to him. (Am. Compl. ¶ 6).
laying dormant for more than seven months, the agreed order
proposed by Herrell and EKU was entered by Madison County
Circuit Court on May 5, 2016. The order (1) dismissed EKU
from the suit; (2) dismissed Herrell's state law claims
and request for monetary relief; and (3) allowed Herrell to
amend his complaint to include Glover and Dr. Benson in their
official capacities as plaintiffs in his claims for
injunctive relief under federal law. On May 23, 2016, Dr.
Benson and Glover removed the matter to federal court and now
seek to dismiss Herrell's amended complaint.
defendants' motion is governed by Rule 12(b)(6). That
rule provides courts with a mechanism to enforce Rule 8,
which governs the sufficiency of a complaint. In determining
whether a plaintiffs complaint can withstand a motion to
dismiss, the Court will assume the veracity of well-pleaded
factual allegations and then determine whether they plausibly
give rise to an entitlement to relief. Ashcroft v.
Iqbal, 556 U.S. 662, 679 (2009). As amended,
Herrell's complaint asserts two claims: (1) a
"request that the Defendant[s]' Disciplinary
Process be stayed and held in abeyance until such time that
the criminal charges are complete" so as to prevent a
"potential violation of his right to self-incrimination
during the process"; and (2) that the Defendants be
enjoined from denying him his diploma in which he has a
protected property interest under the Due Process Clause of
the Fourteenth Amendment. Rule 12(b)(6) fells both claims
because they are claims upon which no relief can be granted.
Court cannot grant the relief Herrell requests in Count I
because the issue was moot before the ...