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Herrell v. Benson

United States District Court, E.D. Kentucky, Central Division, Lexington

June 12, 2017

MICHAEL T. BENSON, in his official capacity as President of Eastern Kentucky University, and JOSLYN GLOVER, in her official capacity as Title IX Coordinator of Eastern Kentucky University, Defendants.



         Eastern 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.

         I. BACKGROUND

         In 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).

         EKU 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 nonparticipation.

         After a 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).

         In an 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.

         Having 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 hearing.

         The 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).

         After 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.


         The 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.


         The Court cannot grant the relief Herrell requests in Count I because the issue was moot before the ...

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