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Doe v. University of South Carolina

United States District Court, D. South Carolina, Columbia Division

February 12, 2018

John Doe, Plaintiff,
University of South Carolina; Harris Pastides; Alisa Liggett; Carl Wells; Dennis Pruitt, Defendants.



         The plaintiff, John Doe, [1] proceeding pro se, brings this civil rights action against the defendants. The Complaint has been filed pursuant to 28 U.S.C. § 1915. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on Doe's motions for a preliminary injunction. (ECF Nos. 4 & 13.) Following notice to the defendants, the court held a hearing on Doe's motions on February 2, 2018. (ECF No. 37.) In the hearing, the court provided the parties the opportunity to file supplemental briefing and further evidence. (ECF Nos. 37 & 38.) The parties each filed supplemental briefs after the hearing, and the defendants filed exhibits. (ECF Nos. 42 & 44.) Having carefully reviewed the parties' filings and the evidence before the court in accordance with applicable law, the court concludes Doe's motions for a preliminary injunction should be denied.


         Doe, a citizen of Iran, was enrolled as a graduate student at the University of South Carolina (“the University”) pursuant to a student F-1 non-immigrant visa. (Compl. ¶¶ 121-23, ECF No. 1 at 27.) However, Doe was suspended from the University on January 17, 2018 as a result of disciplinary violations stemming from another student's allegation against Doe of sexual assault. (Id. ¶ 98, ECF No. 1 at 22.) Doe alleges his visa status requires that he be enrolled as a student at the University, and now that he is suspended, he is subject to deportation by the United States. (Id. ¶ 124, ECF No. 1 at 27.)

         The allegations against Doe were raised by Jane Roe, [2] a fellow student, on August 22, 2017 by filing an incident report in the University's Office of Equal Opportunity Programs. (Id. ¶ 31, ECF No. 1 at 5; Incident Report, ECF No. 37-1.) According to Doe, Roe and Doe met through an online dating service, and on March 23, 2017, they met for a date at a restaurant near the University. (Compl. ¶¶ 1-5; ECF No. 1 at 2.) They drove to Doe's house after dinner to watch a movie. (Id. ¶¶ 9-25, ECF No. 1 at 3-4.) As alleged by Roe in her incident report, after arriving at his house, Doe sexually assaulted her and physically restrained her from leaving. (Incident Report, ECF No. 37-1.) Doe denies Roe's allegations and asserts that their encounter was consensual. (Compl. ¶¶ 9-25, ECF No. 1 at 3-4.)

         A hearing was held before a panel from the University's Office of Student Conduct on October 13, 2017 to consider Roe's allegations against Doe and determine whether Doe should be disciplined. (Id. ¶ 54, ECF No. 1 at 10-11.) Roe did not attend the hearing, but she wrote a victim impact statement that was read in the hearing by a University staff member. (Id.) The hearing panel found Doe responsible for “non-consensual sexual penetration, ” and found him not responsible for “offensive touching” and “dangerous behaviors-intimidation, coercion, and abuse.” (Id.; Ex. A, Mot. for TRO & Prelim. Inj., ECF No. 9-2 at 1-3.) The hearing panel sanctioned Doe by restricting the areas on campus that Doe could visit, and Doe alleges that the panel did not suspend him because the panel determined that such a punishment would be overly punitive in light of his visa status. (Compl. ¶ 54, ECF No. 1 at 10-11.) After the hearing, on the same day, Doe received a letter by email from the Office of Student Conduct that summarized the hearing and stated that both Doe and Roe had “five university business days from the date the decision letter was sent to submit a written request for an appeal.” (Id. ¶ 56, ECF No. 1 at 11; Ex. A, Mot. for TRO & Prelim. Inj., ECF No. 9-2 at 1-3.)

         On October 23, 2017, Roe appealed the hearing panel's decision to the University's Title IX Appellate Review Panel (“Title IX Panel”). (Compl. ¶ 60, ECF No. 1 at 12; Liggett Aff. ¶ 5, Def.'s 2d Suppl. to Resp., ECF No. 42-1 at 3.) Doe then cross-appealed on October 25, arguing Roe's appeal was untimely under university policy. (Compl. ¶ 63, ECF No. 1 at 13.) The Title IX Panel ordered that a new hearing panel rehear the case because the original panel improperly considered Doe's academic status and visa status when it fashioned Doe's sanction. (Id. ¶ 64, ECF No. 1 at 13-14.)

         A new hearing was held in front of a new panel on December 13, 2017. (Id. ¶ 96, ECF No. 1 at 19-22.) Roe testified in this new hearing, but Doe claims Roe raised new allegations that he was not prepared to defend against. (Id.) The new hearing panel found Doe responsible for “non- consensual sexual penetration, offensive touching, and dangerous behaviors-abuse, intimidation, and coercion, ” and not responsible for “failure to comply-published policies.” (Id.; Ex. G, Mot. for TRO & Prelim. Inj., ECF No. 9-2 at 21-25.) The hearing panel suspended Doe from the University for two and one half years, beginning on December 18, 2017. (Compl. ¶ 96, ECF No. 1 at 19-22.)

         Doe's appeal of the new hearing panel's decision was denied by the Title IX Panel on January 17, 2018. (Id. ¶¶ 97-98, ECF No. 1 at 22.) On January 18, the University's Office of International Student Services notified Doe by email that his records would be terminated in the electronic database maintained by the United States Department of Homeland Security that tracks students with F-1 visas, [3] and stated that “[a]ccording to immigration regulation you must leave the country immediately.” (2d Mot. for TRO & Prelim. Inj. ¶ 12, ECF No. 13 at 3; Ex. A, 2d Mot. for TRO & Prelim. Inj., ECF No. 13-1.)

         Doe filed this action on January 19, 2018 by filing a Complaint and his first motion for a temporary restraining order and preliminary injunction. (ECF Nos. 1 & 4.) In the Complaint, Doe expressly raises causes of action pursuant to Title IX of the Education Amendments of 1972 (“Title IX”), 20 U.S.C. § 1681(a), the Fifth Amendment's Double Jeopardy Clause, the Fourteenth Amendment's Due Process Clause, and state law causes of action for negligence, breach of contract, and intentional infliction of emotional distress. Doe seeks injunctive relief and damages. Doe filed a second motion for a temporary restraining order and preliminary injunction on January 26, 2018. (ECF No. 13.)

         On January 22 and 29, 2018 the court recommended that Doe's motions be denied to the extent Doe sought an ex parte temporary restraining order under Rule 65(b) and set a hearing on the preliminary injunction motions for February 2, 2018, at which it heard oral argument from all parties on Doe's motions. (See ECF Nos. 10, 19, 20, & 37.)


         A. Nature of Relief Sought

         Through his motions, Doe seeks to enjoin the University from imposing the disciplinary suspension against him, (ECF No. 4 at 4), to compel the University to reinstate Doe's SEVIS records and visa status, (ECF No. 13 at 9), and to enjoin the University from forcing him to drop all of his classes for the Spring 2018 semester (ECF No. 13 at 9). Generally, state entities such as the University, and its employees acting in their official capacity, are immune from suits filed pursuant to § 1983. The Eleventh Amendment bars suits by citizens against non-consenting states brought either in state or federal court. See Alden v. Maine, 527 U.S. 706, 712-13 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996); Hans v. Louisiana, 134 U.S. 1 (1890). Such immunity extends to arms of the state, including a state's agencies, instrumentalities, and employees. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984); see also Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997); Will v. Mich. Dep't of State Police, 491 U.S. 58, 71 (1989) (holding that neither a State nor its officials acting in their official capacities are “persons” under § 1983). While sovereign immunity does not bar suit where a state has given consent to be sued, or where Congress abrogates the sovereign immunity of a state, neither of those exceptions applies in the instant case.[4]

         Here, however, Doe seeks injunctive relief against the University and its employees. Therefore, the court construes Doe's motions as seeking injunctive relief pursuant to Ex parte Young, 209 U.S. 123 (1908). Under Ex parte Young, a federal court may “issue prospective, injunctive relief against a state officer to prevent ongoing violations of federal law, on the rationale that such a suit is not a suit against the state for purposes of the Eleventh Amendment.” McBurney v. Cuccinelli, 616 F.3d 393 (4th Cir. 2010); see also Antrican v. Odom, 290 F.3d 178, 184 (4th Cir. 2002) (“This exception to sovereign immunity is based on the notion, often referred to as a fiction, that a State officer who acts in violation of the Constitution is stripped of his official or representative character.”) (internal quotations omitted).

         The parties dispute whether the injunctive relief sought by Doe is prospective in accordance with the exception recognized in Ex Parte Young, or retroactive, which would render Ex parte Young inapplicable. Compare Carten v. Kent State Univ., 282 F.3d 391, 396 (6th Cir. 2002) (finding requests for reinstatement to be prospective in nature and appropriately sought pursuant to Ex parte Young); Osteen v. Henley, 13 F.3d 221, 223 (7th Cir. 1993) (finding expelled student's suit against school for reinstatement to school was not barred by the Eleventh Amendment because it sought prospective injunctive relief); Kashani v. Purdue Univ., 813 F.2d 843, 848 (7th Cir. 1987) (collecting cases); and Doe v. Ohio State Univ., 219 F.Supp.3d 645 (S.D. Ohio 2016) (finding reinstatement from school expulsion is prospective injunctive relief, and therefore, not barred by the Eleventh Amendment), with Jemsek v. Ryne, 662 Fed.Appx. 206 (4th Cir. 2016) (holding that a physician seeking rescission of a state medical licensing board's order suspending his license and letter of concern was not seeking prospective relief); and Republic of Paraguay v. Allen, 134 F.3d 622, 628 (4th Cir. 1998) (holding that a suit to void a state capital sentence of a foreign national did not seek prospective relief). Because the court finds Doe's motions for a preliminary injunction should be denied on other grounds, the court need not resolve this dispute at this time.

         B. Motions for Preliminary Injunction

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). A plaintiff seeking a preliminary injunction must establish all four of the following elements: (1) he is likely to succeed on the merits; (2) he is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in his favor; and (4) an injunction is in the public interest. Id. at 20; The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 346-47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), reissued in part by 607 F.3d 355 (4th Cir. 2010), overruling Blackwelder Furniture Co. of Statesville v. Seilig Mfg. Co., 550 F.2d 189 (4th Cir. 1977).[5] A plaintiff must make a clear showing that he is likely to succeed on the merits of his claim. Winter, 555 U.S. at 22; Real Truth, 575 F.3d at 345-46; see also Dewhurst v. Century Aluminum Co., 649 F.3d 287, 290 (4th Cir. 2011). Similarly, he must make a clear showing that he is likely to be irreparably harmed absent injunctive relief. Winter, 555 U.S. at 20-23; Real Truth, 575 F.3d at 347. Only then may the court consider whether the balance of equities tips in the plaintiff's favor. See Real Truth, 575 F.3d at 346-47.[6] Finally, the court must pay particular regard to the public consequences of employing the extraordinary relief of injunction. Real Truth, 575 F.3d at 347 (quoting Winter, 555 U.S. at 24).

         1. Likelihood of Success on the Merits

         Doe's basis for injunctive relief appears to rest only on his claims for violations of Title IX, the Fifth Amendment's Double Jeopardy Clause, and the Fourteenth Amendment's Due Process Clause.[7] Doe brings these claims pursuant to 42 U.S.C. § 1983. (Compl. ¶ 140, ECF No. 1 at 37.) A legal action under § 1983 allows “a party who has been deprived of a federal right under the color of state law to seek relief.” City of Monterey v. Del Monte Dunes at Monterey, Ltd., 526 U.S. 687, 707 (1999). To state a claim under § 1983, a plaintiff must allege: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).

         a. Fourteenth Amendment-Due Process

         Doe claims the University's disciplinary process violated his right to due process under the Fourteenth Amendment. Specifically, Doe alleges he was deprived of due process because Defendant Wells modified the incident report in which Roe made allegations against Doe; Roe's appeal from the first hearing was filed late; the Title IX Panel instructed the new hearing panel to not consider Doe's ...

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