The opinion of the court was delivered by: Judge Smith
The Ohio State University Board of Regents, et al.,
Plaintiff asserts that the Defendant deprived her of access to educational opportunities in violation of Title IX of the Education Act of 1972, 20 U.S.C. § 1681(a), because Defendant The Ohio State University ("OSU") acted with deliberate indifference when Jeremy Goldstein sexually assaulted another student and later raped Plaintiff. Plaintiff also brings a common law negligence claim.*fn1
OSU moves for summary judgment (Doc. 32). For the reasons that follow, the Court grants OSU's Motion for Summary Judgment.
In the fall of 2001, Plaintiff and Jeremy Goldstein both enrolled at OSU as freshmen. Prior to this time, Plaintiff and Mr. Goldstein were high school friends from Beechwood, Ohio. A relationship developed between Plaintiff and Mr. Goldstein toward the end of their senior year in high school and during their freshman year in college. This relationship developed into a consensual sexual relationship.
On February 3, 2002, another student at OSU ("Ms. Lee") reported that she and Jeremy Goldstein, a fellow Baker Hall resident, were having a conversation in her room when he tried to remove her clothes and to forcibly have sex with her. (Lee Aff. ¶ 3 & Aff. Ex. A). Mr. Goldstein left the room, but later returned. Mr. Goldstein invited her to a Super Bowl party later that evening and she agreed to go.
After she returned home from the party, Ms. Lee talked with her Resident Advisor at Baker Hall and wrote a Communication Information Form ("CIF") describing the incident. Ms. Lee did not describe a completed sexual assault in the CIF, but rather, an attempted one. (See Lee Aff. Ex. A). Ms. Lee also stated that Mr. Goldstein was drunk at the time. (Orifice Aff. ¶ 5). Brian Orifice, the Baker Hall Director, encouraged Ms. Lee to report the incident to the police. (Orifice Aff. ¶ 6). Ms. Lee told Mr. Orifice that she had talked with her father and that she would file a police report. (Lee Aff. ¶ 4).
In the days following February 3, 2002, Mr. Orifice conducted an investigation which he reported on the CIF, including interviews with Ms. Lee and Mr. Goldstein. Mr. Orifice also talked with Ms. Lee about her options within the University. (Lee Aff. ¶ 4; Orifice Aff. ¶ 6). Ms. Lee stated that her objectives were to have Mr. Goldstein removed from her dormitory, to have the incident documented, and to perhaps reconcile her friendship with Mr. Goldstein. (Lee Aff. ¶¶ 5, 6). OSU temporarily removed Mr. Goldstein from Baker Hall on or about February 5, 2002, and reassigned him to Smith Hall. (Orifice Aff. ¶ 6).
On February 11, 2002, Ms. Lee filed a police report which provided different details than those reported in her CIF. (Orifice Aff. ¶ 4; Klein Dep. at 114; Hollern Aff. ¶ 6). Four days later, on February 15, 2002, Ms. Lee notified OSU police via e-mail that "this is as far as I wish to pursue the case." (Lee Aff. ¶ 7 & Aff. Ex. B). Ms. Lee told Mr. Orifice that she had decided that she wanted to leave open the possibility of maintaining a friendship with Mr. Goldstein, and asked Mr. Orifice to facilitate her contacting Mr. Goldstein on her own terms and in her own time. Later that spring, Ms. Lee did in fact call Mr. Goldstein in an effort to restore the friendship. (Lee Aff. ¶ 6).
Ms. Lee's report to police was logged on the OSU Campus Security Report as a sexual assault, and it was reported in the police blotter of a campus paper on February 20, 2002. (Hollern Aff. ¶ 6; Doe 11/01 Dep. at 65-67 & Ex. 23). OSU did not issue a campus crime alert or warning about Mr. Goldstein to the campus or general public, as such a warning is not a substitute for arrest and prosecution (Hollern Aff. ¶ 5), and was inconsistent with the wishes expressed by Ms. Lee.
On February 26, 2002, based on this incident, Ohio State charged Mr. Goldstein with sexual misconduct and an alcohol violation under the Code. Taking into account Ms. Lee's wishes as to both forum and possible sanction, a hearing was held before a Residence Life Hearing Officer. Mr. Goldstein waived notice and a formal hearing, and Mr. Orifice conducted an administrative hearing the same day.
Mr. Orifice found that Mr. Goldstein had committed sexual misconduct and violated the alcohol provision of the Code. (Orifice Aff. ¶ 9). Mr. Orifice placed Mr. Goldstein on disciplinary probation until June 14, 2002, made his housing re-assignment permanent, and required that he be "open to" Ms. Lee "approaching him to discuss the situation but on her own terms." (Id.). Mr. Goldstein did not appeal.
On the evening of the next day, February 21, 2002, Plaintiff went to a bar in downtown Columbus with friends and had two or three beers. She and her friends returned to campus around 1:00 a.m. (Doe 10/19 Dep. at 239-49). Rather than returning to her own dormitory, Plaintiff went to Smith Hall with one of her friends. That friend decided to go to bed because she had class the next morning. (Id. at 252). Plaintiff testified, "I went on her computer . . . [t]o find people to hang out with." (Id. at 253). She began to exchange "instant messages" with Mr. Goldstein. (Id. at 253-54). Plaintiff and Mr. Goldstein agreed to meet outside of Smith Hall to share a cigarette. (Id. at 257).
Once outside, Mr. Goldstein told Plaintiff that he had forgotten his cigarettes and suggested that they go up to his room. (Id. at 260). Plaintiff told Mr. Goldstein that she was not interested in sex that night, ("I told him . . . you know we're not going to hook up tonight") but she agreed to go to his room. (Id. at 260-61). They spent about twenty to twenty-five minutes total in the room. (Id. at 266-67). Throughout that time, Mr. Goldstein's roommate was present either asleep or, as Plaintiff believes, "passed out." (Id. at 264). After about ten to fifteen minutes of talking and smoking, Plaintiff and Mr. Goldstein sat on the couch and began intimate contact that was at first consensual. (Id. at 267-73). Plaintiff then describes the sexual assault in detail during her deposition:
A. While he was kissing me, he-I ended up-he pushed me on my back, just with his chest by his own force of just being aggressive. And his, at this point, his tongue was, like, choking me. He then took my hands and put them above my head, which were like resting on the armrest of the-like I remember feeling-my arms were on the arm rest of the couch behind me. Then he started pulling my ears, I think as far as they would go, with his teeth. And then he took one of his hand-his hands were holding mine above me and he took one of his hands and continued holding them above me, on the other one he put down my pants and he put what felt like a fist inside me. And then I was in severe pain instantly, and began to gasp for air. And while I was making those kind of noises, like-my breath had been taken away from me or something, like I couldn't breath, he was whispering in my ear how much I loved it and was enjoying it and like, o, I knew you'd like it.
Then he took both of this hands and pulled down my pants and quickly, very quickly, put both my hands together above my head. And at this point, we were fully clothed with my pants just pulled down and his pants just opened up. And he started having sex with me. And I told him to get the fuck off me. And he just did it harder and he was using his hands as, like leverage, I guess you could say. And every time I said get the fuck off me, he did it even harder. (Pl. Depo. at 268-270).
Later on February 22, Plaintiff called a male friend who was an OSU student, went to his fraternity house, and reported the events. (Doe 10/19 Dep. at 292). He told Plaintiff that she needed to report it, and she admits she was reluctant to do so. (Id. at 293). Eventually, Plaintiff agreed that she would tell the Hall Director at Stradley Hall. (Id. at 293-94). Plaintiff and her friend left his fraternity and found Leon Stevenson, the Assistant Hall Director of Stradley Hall. (Id. at 299). Mr. Stevenson took notes of the conversation and suggested that they call the police. Mr. Stevenson then left the room to call Jennifer Klein, Assistant Director of Residence Life. (Stevenson Aff. ¶ 5).
Mr. Stevenson did not use the names of the persons involved when talking with Ms. Klein. Ms. Klein advised Mr. Stevenson over the phone of information and resources to provide to Plaintiff. (Klein Aff. ¶ 2; Stevenson Aff. ¶ 5). Mr. Stevenson urged Plaintiff to allow him to call the police and she agreed. (Doe 10/19 Dep. at 304-05). Ohio State police officer Pamela Temple responded. (Stevenson Aff. ¶ 6; Temple Aff. ¶ 2). Mr. Stevenson and Officer Temple recall that Plaintiff was reluctant to report the incident, and specifically that she did not provide them with the last name of the alleged assailant. (Stevenson Aff. ¶ 5; Temple Aff. ¶ 2). Plaintiff testified that she "is not sure" whether she provided the full name. (Doe 10/19 Dep. at 319).*fn2 The CIF that Mr. Stevenson prepared following Plaintiff's report shows that Plaintiff mentioned only the first name, "Jeremy." (Stevenson Aff. Ex. A). Plaintiff testified: "[Officer Temple] asked me if I wanted to file a police report, and I asked her do I have to do it now . . . . I think she said something like you have 19 months or 18 months or something like that, of that nature." (Doe 11/01 Dep. at 77).
Officer Temple recalls telling Plaintiff that she could file a report later if that is what she wanted to do. (Temple Aff. ¶ 2). As Plaintiff admits, Officer Temple advised her of various options. (Doe 10/19 Dep. at 318). Officer Temple recalls that they discussed counseling and support services, and that Plaintiff told her she was already seeing a counselor at OSU and had a scheduled appointment coming up. (Temple Aff. ¶ 2). Plaintiff does not remember telling them she was already in counseling, (Doe 10/19 Dep. at 325-26), but admits, "I may have" (Doe 11/01 Dep. at 104). Plaintiff told Mr. Stevenson and Officer Temple that she wanted time to think about her options. (Temple Aff. ¶ 2; Stevenson Aff. ¶ 6). Plaintiff agrees that, on that day, she felt uncertain about what she wanted to do. (Doe 11/01 Dep. at 73-74). Officer Temple gave Plaintiff a yellow business card with contact information and wrote her name on the reverse side, (Temple Aff. ¶ 2) although Plaintiff now denies receiving the card. (Doe 10/19 Dep. at 95).
Plaintiff does acknowledge that, if she wanted to talk with Officer Temple again, she could have asked Mr. Stevenson to contact her. (Doe 11/01 Dep. at 78). Plaintiff also acknowledges that Mr. Stevenson and Officer Temple treated her with respect, listened to her, seemed interested and fairly concerned, and took her seriously when she made the report on February 22, 2002. (Doe 10/19 Dep. at 301; Doe 11/01 Dep. at 76-77).
Mr. Stevenson took contemporaneous notes of the conversation with Plaintiff, and later recopied his notes onto a CIF dated February 27, 2002. (Stevenson Aff. Ex. A). The CIF does not record the full name of the alleged assailant, because Plaintiff did not disclose it.
Mr. Stevenson's report states as follows:
[Plaintiff] said that she wanted to think about and hear all of her options.
Leon told her about the services the Residence Education department could provide. She said that she wanted to hear what support and services the police would provide. She then asked Leon to call the police. Officer Pam arrived and told [Plaintiff] of the different options available to her.
She [Plaintiff] said that she needs some alone time to think about what she wanted to do. [Her] ultimate goal was to have the incident documented so that if he acted this way toward another woman his history would speak for itself. While discussing the entire situation, [she] said the guy's name was Jeremy and that he lived in Smith, in a temp room. At this time [Plaintiff] said she wanted to go to her room to think about what decision she was going to make. (Id.). Plaintiff acknowledges the substantial accuracy of the information recorded in this CIF. (Doe 10/19 Dep. at 310-14).
Mr. Stevenson recalls that he checked with Plaintiff after February 22, 2002, and that she led him to believe she was doing fine. (Stevenson Aff. ¶ 8). Plaintiff acknowledges that she saw Mr. Stevenson in the dormitory from time-to-time after February 22, but she never sought ...