United States District Court, E.D. Kentucky, Central Division, Lexington
MEMORANDUM OPINION AND ORDER
M. Hood, Senior U.S. District Judge.
matter is before the Court upon Defendants' Motion to
Dismiss [DE 13] or, in the alternative, for summary judgment.
Plaintiff has filed a Response, under seal [DE 18], and
Defendants has filed a Reply, under seal, in further support
of their Motion [DE 24]. For the reasons that follow,
Defendants' Motion will be granted.
evaluating a Rule 12(b)(6) motion, the factual allegations of
the Complaint “must be enough” that the right to
relief is “above the speculative level” and is
“plausible on its face.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555-56 (2007); Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009). If the complaint pleads
facts “merely consistent with” liability, it
“stops short of the line between possibility and
plausibility of entitlement to relief.” Id.
“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.” Id.
certain items from the University's disciplinary
proceeding and investigation are presented with respect to
some aspects of the request for relief, this motion shall be
treated in part as one for summary judgment under Rule 56.
See Song v. City of Elyria, 985 F.2d 840, 845
(6th Cir. 1993). A motion for summary judgment
should be granted if there are no genuine issues of material
fact and the moving party is entitled to judgment as a matter
of law. See Celotex Corp. v. Catrett, 477 U.S. 317,
relevant times, Plaintiff Jane Doe was an undergraduate
student at the University of Kentucky. Plaintiff's
Complaint ¶ 15. Plaintiff served as a Resident Advisor
(“RA”) for her dormitory and, as a result, had
been trained with respect to Title IX and the University
policies for reporting and making complaints under Title IX.
Compl. ¶ 15.
to the Fall semester of 2016, Plaintiff participated in two
weeks of RA training on campus. John Doe Hearing Trans. at
22. On the night of August 20, 2016, Plaintiff went to dinner
with a friend and his father after she had finished training.
Id. at 22. After dinner, Plaintiff received a text
message inviting her to a fraternity party off-campus that
evening. Id. at 22. Plaintiff knew many members of
the fraternity and decided to attend the party. Id.
at 22. Plaintiff had attended parties hosted by this
fraternity before and felt comfortable there. Id. at
23. She saw several friends and accepted a beer that was
offered to her. Id. at 24.
and one of her friends, Michael, wandered around the party
for some time as more people arrived. Id. at 25. At
some point, the party became crowded and Plaintiff recalled
accidentally bumping into the same person a number of times.
Id. at 25. Finally, Plaintiff turned to the person
and said “I have been bumped into you enough times I
think that it merits being on a first name basis.”
Id. at 25. The person was John Doe, and the two
carried on a conversation, realizing that they had previously
met at an entrepreneurship event for startup companies in
Lexington. Id. at 25-26.
talking for about an hour, John Doe asked if Plaintiff had
any plans for the rest of the night. John Doe Hearing Trans.
at 28. She informed him that she was an RA, so she had needed
to return to the dormitory by the 2:00 a.m. RA curfew but had
no other plans for the evening. Id. at 28. John Doe
asked her if she would like to walk back to his apartment,
which was close to Plaintiff's dorm, and continue their
conversation. Id. at 28. Plaintiff agreed and left
the party with John Doe. Id. at 28. As Plaintiff and
John Doe walked back to John Doe's apartment, they held
hands and continued talking. Id. at 29-30. Plaintiff
and John Doe kissed in the elevator on the way up to his
apartment. Id. at 30. Once they reached the
apartment John Doe took Plaintiff out to the balcony of his
apartment from which she could see her dorm room.
Id. at 31. Plaintiff and John Doe kissed on the
balcony of John Doe's apartment and went back inside.
Id. at 31.
began to play cards and drink vodka and orange juice. John
Doe Hearing Trans. at 32. Plaintiff and John Doe began
kissing again and walked towards John Doe's bedroom.
Id. at 33. John Doe “gently” guided to
Plaintiff toward the bed and closed the door behind him.
Id. at 33. Plaintiff did not feel threatened by
this. Id. at 32. Plaintiff helped undress herself as
they continued kissing and laughing. Id. at 33-34.
Plaintiff voluntarily performed oral sex on John Doe.
Id. at 34. At some point, Plaintiff stopped
performing oral sex and began kissing John Doe again.
Id. at 34. Plaintiff then requested that John Doe
get a condom. Id. at 34-35. At that point, Plaintiff
and John Doe engaged in vaginal sexual intercourse.
Id. at 35-36.
point during intercourse, Plaintiff began to cry. John Doe
Hearing Trans. at 38. John Doe stopped and asked if she was
ok. Id. at 38. Plaintiff responded that she was ok.
John Doe Hearing Trans. at 38; M. Alexander Investigative
Report, attached as Exhibit 1. John Doe reminded Plaintiff
that it was almost curfew and they would need to get back to
her dorm. John Doe Hearing Trans. at 38. The two got dressed,
and Plaintiff put on John Doe's baseball cap backwards
and began to play drums on the practice drum set in John
Doe's room. Id. at 39. John Doe invited
Plaintiff to stay the night if she thought she would not be
reprimanded for missing curfew. Id. at 39. Plaintiff
declined, and they walked together for the two blocks to her
dorm. Id. at 40. John Doe offered to walk Plaintiff
to her dorm room door, but Plaintiff declined. Id.
at 41. Before Plaintiff entered the dormitory, John Doe asked
for her number, kissed her goodnight, and asked her to text
him when she got to her room. Id. at 41. Plaintiff
texted John Doe when she went to her room at 1:53 a.m. on
August 21. Id. at 51-52. The text message stated
“[t]hank you for walking me home” and included a
text message picture, called an emoji, depicting stars. Text
Messages between John Doe and Plaintiff, attached as Exhibit
returning to her dorm room, Plaintiff texted Dealla Samadi
that something had happened and that she was scared. John Doe
Hearing Trans. at 41; Text Messages between Plaintiff and D.
Samadi, attached as Exhibit 3. Plaintiff also went to the
dorm room of her RA mentor, Angelo Ying, that evening. John
Doe Hearing Trans. at 41. When she arrived in Ying's
room, Plaintiff was upset and crying. Id. at 42.
Plaintiff told Ying that, during the encounter with John Doe,
she had told him to stop. Id. at 42. Ying told her
that this constituted rape. Id. at 42.
also reached out to two other friends during the early
morning of Sunday, August 21, 2016: Michael, via text
message, and Ethan, via voicemail. John Doe Hearing Trans. at
48-49. The next morning, Dealla met with Plaintiff to talk
about what happened as they walked to a coffee shop.
Id. at 49. Dealla told Plaintiff that “[she]
d[id]n't think [John Doe] would ever do this.”
Id. at 49.
saw John Doe at a fraternity event the following Monday. John
Doe Hearing Trans. at 52. Plaintiff tried to initiate
conversation with John Doe, but he brushed her off.
Id. at 52-53. Over the next few weeks Plaintiff sent
John Doe a number of text messages asking about his classes
and if he would meet her for coffee. Id. at 53;
Texts with John Doe, Ex. 2. After receiving brief or no
responses to her text messages, Plaintiff sent a long text
message to John Doe indicating that she had been a virgin and
that they had moved too fast during their encounter. John Doe
Hearing Trans. at 53; Texts with John Doe, Ex. 2. Plaintiff
also indicated that she had wanted to be “there,
” meaning with him in his apartment, and had chosen to
be there that night. John Doe Hearing Trans. at 53; Texts
with John Doe, Ex. 2. Plaintiff also told John Doe that, if
he was not romantically interested in her, then he should
just tell her. John Doe Hearing Trans. at 53; Texts with John
Doe, Ex. 2. John Doe indicated that he was not interested in
pursuing anything further with Plaintiff. John Doe Hearing
Trans. at 53; Texts with John Doe, Ex. 2. Plaintiff replied
“I appreciate the honesty [John Doe]. Thats [sic] all I
needed to know:)”. Texts with John Doe, Texts with John
Doe, Ex. 2. Plaintiff later explained that she was in denial
about the situation when she sent these messages. John Doe
Hearing Trans. at 54.
chose not to report the incident to the University at that
time because she was worried about her friends in the
fraternity knowing what had happened. John Doe Hearing Trans.
at 50-51. At the hearing on this incident, Plaintiff stated
that initially her “first concern” with reporting
the incident was the effect it would have on her social life
because all of her male friends were in this fraternity and
all her female friends frequently attended the
fraternity's events. Id. at 55-56. Angelo Ying
ultimately reported the incident to university officials on
September 13, 2016. Compl. ¶ 18; John Doe Hearing Trans.
at 51. Ying reported that John Doe had “[e]ngaged in
vaginal sexual intercourse with the Plaintiff without her
consent.” Compl. ¶ 18. Upon receiving this report,
Deputy Title IX Coordinator Martha Alexander met with the
Plaintiff at the University's Violence Intervention and
Prevention Center (“VIP”) on September 15, 2016.
Compl. ¶ 18. Plaintiff told Alexander that she did not
want to pursue a formal investigation or hearing process
then. M. Alexander Report, Ex. 1. Weeks passed, and Plaintiff
requested the issuance of a No. Contact order against John
Doe on October 6, 2016. Compl. ¶ 18.
on November 9, 2016, Plaintiff indicated to the Title IX
office that she wished to pursue a formal investigation
against John Doe. Compl. ¶ 19. Alexander began a formal
investigation into the matter, which was completed on
December 16, 2016. Compl. ¶ 19. Plaintiff remained
concerned with how the investigation would interfere with her
social life. Compl. ¶ 21. Plaintiff was informed that
while the Title IX office appreciated her concern and could
provide preliminary sanctions to students involved in
investigations, the office has no oversight over either the
Office of Fraternity and Sorority Life or over the actions of
the individual fraternities and sororities. Compl.
¶¶ 21-22; Oct. 6, 2016 No. Contact Order, attached
as Exhibit 4. A no contact order was put in place to ensure
that Plaintiff and John Doe would have no physical or verbal
interaction. Compl. ¶ 22. Plaintiff was further informed
that if she wished preliminary sanctions to be imposed
regarding John Doe's contact with his fraternity, she
would have need to reach out to the Office of Fraternity and
Sorority Life or to his fraternity directly, as the Title IX
office has no power to impose such sanctions. Compl. ¶
chose to contact John Doe's fraternity to seek additional
preliminary sanctions, including that she be able to attend
events for John Doe's fraternity but John Doe, a
fraternity member, be excluded. Compl. ¶ 23. The
fraternity decided to require a “sober buddy” to
attend fraternity events with John Doe, so as to ensure that
no contact between Plaintiff and John Doe occurred. Compl.
¶ 24. Unsatisfied with the fraternity's choice of
preliminary sanction, Plaintiff again complained to the Title
IX office that she wanted John Doe prohibited from attending
his fraternity events. Compl. ¶ 24. The Title IX office
again informed her that it did not have the authority to
impose such a sanction as it had no control over fraternity
membership or governance. Compl. ¶ 21, 24.
the course of the investigation, Plaintiff frequently met
with the Title IX office to participate in the investigation
of her allegations against John Doe. Compl. ¶ 28. The
investigation involved interviewing many students and
collecting evidence, such as text messages, one of
Plaintiff's journal entries, and dorm entrance logs.
See M. Alexander Report, Ex. 1. Title IX office
officials interviewed Jane Doe and John Doe multiple times on
various aspects of the investigation., interviewed six other
witnesses, and identified and reviewed more than ten exhibits
over the course of ...