United States District Court, W.D. Kentucky, Louisville Division
MEMORANDUM OPINION AND ORDER
REBECCA GRADY JENNINGS, DISTRICT JUDGE
Syed Ali brings this action against Defendants University of
Louisville (the “University”), Dr. Marcia Hern,
Dr. Angela Calloway, and Katherine Weckman alleging
violations of Title IX of the Educational Amendments Act of
1972 (20 U.S.C. § 1681 et seq.), Title VI of the Civil
Rights Act of 1964 (42 U.S.C. § 2000d et seq.), the Age
Discrimination Act of 1975 (42 U.S.C. § 6101 et seq.),
the Fifth and Fourteenth Amendments to the United States
Constitution (42 U.S.C. § 1983), breach of contract,
defamation, and intentional infliction of emotional distress
(“IIED”). [DE 1-2, Compl.]. Defendants now move
to dismiss all claims under Federal Rule of Civil Procedure
12(b)(6). [DE 7, Univ. First MTD; DE 10, Weck. First MTD; DE
34, Univ. Second MTD; DE 36, Weck. Second MTD]. The matter is
fully briefed and ripe for judgment. [See DE 38, Resp. Univ.
MTD; DE 39, Resp. Weck. MTD; DE 40, Weck. Reply].
considered the parties' filings and the applicable law,
the Court GRANTS the University's, Dr. Hern's, and
Dr. Calloway's Second Motion to Dismiss [DE 34] and
DENIES AS MOOT the University's, Dr. Hern's, and Dr.
Calloway's First Motion to Dismiss [DE 7]. The Court
declines to exercise supplemental jurisdiction on Ali's
remaining state-law claims against Weckman. Weckman's
First and Second Motions to Dismiss [DE 7; DE 36] are
therefore DENIED AS MOOT, and the case is REMANDED to state
following facts are set out in the Complaint and accepted as
true for purposes of Defendants' Motions. See Davis
v. Prison Health Servs., 679 F.3d 433, 440 (6th Cir.
in 2015, Ali was a student at the University of Louisville
School of Nursing. [DE 32, Am. Compl. at ¶ 11]. On
September 19, 2016, Ali was arrested for two counts of sexual
misconduct with a minor under the age of 12 and one count of
distribution of obscene material to a minor under the age of
12. Id. at ¶ 12. Following Ali's arrest,
Dr. Hern, Dean of the School of Nursing, placed Ali on
interim suspension for potential violations of the University
Code of Student Conduct. Id. at ¶ 17; [DE 9-1,
Interim Suspension Letter]. The University also claimed that
Ali failed to complete a background check required for
admission. [DE 7-1, Univ.'s Motion to Dismiss at 40]. Ali
contends that he did not violate the Code of Student Conduct
and complied with all admissions requirements, including the
background check. [DE 32 at ¶ 11]. Ali then completed a
background check at the University's request but
voluntarily remained on suspension. [DE 7 at 40; DE 9-1; DE
32 at ¶ 21].
December 1, 2016, Ali alleged that Dr. Calloway, a clinical
professor at the University, violated his rights under the
Family Educational Rights and Privacy Act
(“FERPA”) by discussing his case in her classes.
[DE 32 at ¶ 23]. The University held a hearing on
Ali's grievance and determined that Dr. Calloway had not
violated Ali's rights. Id. at ¶ 25. In May
2017, Ali complained to the University that another student,
Katherine Weckman, violated Ali's rights under Title IX
during the discussions in Dr. Calloway's classes by
claiming that she “knew” Ali was a
“pedophile.” Id. at ¶ 26. The
University determined that Weckman's conduct did not
implicate Title IX and informed Ali that it would not hold a
hearing on his complaint. Id. at ¶ 27.
filed this civil action under the pseudonym “John
Doe” in Jefferson County Circuit Court on September 25,
2017. Id. The state court declined Ali's request
for a protective order to allow him to proceed as “John
Doe.” [DE 1-2; DE 25-1 at 272]. On October 17, 2017,
Defendants removed the action to this Court. [DE 1, Not.
Removal]. Defendants moved to dismiss the action under
Federal Rule of Civil Procedure 12(b)(6). [DE 7; DE 10]. Ali
then moved for leave to proceed as “John Doe” and
to seal or remove his name from all documents. [DN 13]. The
Court denied Ali's request and ordered Ali to file an
amended complaint using his full name [DE 28; DE 29], which
Ali did on July 18, 2018 [DE 32]. Defendants then filed
updated Motions to Dismiss. [DE 34; DE 36]. Timely responses
and replies were filed. [See DE 38; DE 39; DE 40].
Rule of Civil Procedure 12(b)(6) requires a court to dismiss
a complaint if the complaint “fail[s] to state a claim
upon which relief can be granted[.]” Fed.R.Civ.P.
12(b)(6). To properly state a claim, a complaint must contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief[.]” Fed.R.Civ.P.
8(a)(2). When considering a motion to dismiss, courts must
presume all factual allegations in the complaint to be true
and make all reasonable inferences in favor of the non-moving
party. Total Benefits Planning Agency, Inc. v. Anthem
Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th
Cir. 2008) (citation omitted). “But the district court
need not accept a bare assertion of legal conclusions.”
Tackett v. M & G Polymers, USA, LLC, 561 F.3d
478, 488 (6th Cir. 2009) (citation omitted). “A
pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.
Nor does a complaint suffice if it tenders naked assertion[s]
devoid of further factual enhancement.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal citation and
quotation marks omitted).
survive a motion to dismiss under Rule 12(b)(6), the
plaintiff must allege “enough facts to state a claim to
relief that is plausible on its face.” Traverse Bay
Area Intermediate Sch. Dist. v. Mich. Dep't of
Educ., 615 F.3d 622, 627 (6th Cir. 2010) (internal
quotation marks omitted) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim becomes
plausible “when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). “A complaint will be dismissed pursuant
to Rule 12(b)(6) if no law supports the claims made, if the
facts alleged are insufficient to state a claim, or if the
face of the complaint presents an insurmountable bar to
relief.” Southfield Educ. Ass'n v. Southfield
Bd. of Educ., 570 Fed.Appx. 485, 487 (6th Cir. 2014)
(citing Twombly, 550 U.S. at 561-64).
Procedural Due Process
Ali claims that the University violated his due-process
rights as guaranteed by the Fifth and Fourteenth Amendments
to the United States Constitution by failing to follow its
own published policies and procedures when responding to the
allegations against Ali. [DE 32 at ¶¶ 34-35]. Ali
seeks both damages related to his suspension under 42 U.S.C.
§ 1983 and reinstatement into the Nursing Program.
Id. at ¶¶ 38-39; see Wurzelbacher v.
Jones-Kelley, 675 F.3d 580, 583 (6th Cir. 2012) (holding
that a plaintiff who seeks to recover damages for violation
of his constitutional rights must bring his action under 42
U.S.C. § 1983).
response, the University asserts that the Eleventh Amendment
protects it from suit. The Eleventh Amendment stipulates that
a state and its agencies may not be sued in federal court,
regardless of the relief sought, unless the state has waived
its immunity or Congress has overridden it. P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S.
139, 146 (1993). Eleventh Amendment immunity can only be
waived if (1) the state consents to suit; (2) the Ex parte
Young, 209 U.S. 123 (1908), exception applies; or (3)
Congress has abrogated a state's Eleventh Amendment
immunity. Kovacevich v. Kent State Univ., 224 F.3d
806, 817 (6th Cir. 2000) (citing Nelson v. Miller,
170 F.3d 641, 646 (6th Cir. 1999)).
University of Louisville is a state agency cloaked with
Eleventh Amendment immunity.” Graham v. Nat'l
Collegiate Athletic Ass'n, 804 F.2d 953, 960 (6th
Cir. 1986) (citing Martin v. Univ. of Louisville,
541 F.2d 1171, 1174 (6th Cir. 1976)); see also Hutsell v.
Sayre, 5 F.3d 996, 999 (6th Cir. 1993) (noting that
public universities in Kentucky and their directors are state
agencies and officials for Eleventh Amendment purposes). It
is well settled that Kentucky has not consented to waive its
Eleventh Amendment immunity. Adams v. Morris, 90
Fed.Appx. 856, 857 (6th Cir. 2004) (citing Whittington v.
Milby, 928 F.2d 188, 193 (6th Cir. 1991)). Further, the
Ex parte Young exception only allows suits seeking
prospective injunctive relief against college administrators,
professors, and other state officials acting in their
official and individual capacities. Flaim v. Med. Coll.
of Ohio, 418 F.3d 629, 641 (6th Cir. 2005). It does not
affect the Eleventh Amendment's prohibition on suing
state entities themselves. Id. Finally, the Sixth
Circuit has found that Congress did not intend for Section
1983 to override states' immunity under the Eleventh
Amendment. See Whittington, 928 F.2d at 193.
Accordingly, the Eleventh Amendment prohibits Ali from
seeking damages under Section 1983 or asserting a due-process
claim against the University, and Ali's due-process claim
against the University is dismissed.
it is unclear from Ali's Complaint whether he asserts his
due-process claim only against the University itself-which,
as discussed above, the Eleventh Amendment prohibits-or
against both the University and Dr. Hern, who suspended Ali
in her role as dean of the School of Nursing. [DE 32 at
¶¶ 15, 34-35]. Because the Court must make all
reasonable inferences in Ali's favor when considering
Defendants' Motions to Dismiss, the Court will construe
Ali's Complaint as asserting his due-process claim
against both the University and Dr. Hern in her official
capacity as dean. Total Benefits Planning Agency,
Inc., 552 F.3d at 434. And while the Eleventh Amendment
prohibits Ali from proceeding against the University with his
due-process claim, it does not bar his claim against Dr. Hern
as it relates to Ali's reinstatement into the Nursing
Program. Flaim, 418 F.3d at 637 n. 4 (noting that the
Eleventh Amendment did not prohibit Flaim's claim against
state officials in their official capacities for prospective
injunctive relief requiring his readmittance to medical
plaintiff claiming violation of his procedural due-process
rights must allege facially plausible facts showing that (1)
he had a fundamental liberty or property interest (2) that
was deprived without sufficient notice or opportunity to be
heard. Bd. of Regents of State Colls. v. Roth, 408
U.S. 564, 572-73 (1972). Ali's Complaint cites four
separate instances where he was allegedly denied due process:
(1) Ali's grievance hearing relating to the complaint
that he filed against Dr. Calloway; (2) the University's
decision not to hold a hearing on Ali's Title IX
complaint against Weckman; (3) Dr. Hern's letter to Ali
stating that Ali needed to complete a criminal background
check; and (4) Ali's interim suspension following his
criminal charges for sexual misconduct with a minor. [DE 32
at ¶ 34].
these four instances, Dr. Hern was involved only in the
decision to suspend Ali from the Nursing
Program. Courts have consistently held that
higher-education disciplinary decisions implicate due
process. See, e.g., Goss, 419 U.S. at 575 (liberty
and property interest implicated in high-school suspension);
Board of Regents, 408 U.S. at 564; Doe v. Univ.
of Cincinnati,872 F.3d 393, 399 (6th Cir. 2017)
(“Suspension clearly implicates a protected property
interest, and allegations of sexual assault may impugn a
student's reputation and integrity, thus implicating a
protected liberty interest.”); Flaim, 418 F.3d
629, 634 (6th Cir. 2005); Gorman v. Univ. of R.I.,837 ...