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Nokes v. Miami University

United States District Court, S.D. Ohio, Western Division

August 25, 2017

JOHN NOKES, Plaintiff,
v.
MIAMI UNIVERSITY, et al., Defendants.

          ORDER GRANTING PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION (DOC. 2)

          HON. MICHAEL R. BARRETT, UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on: (1) Plaintiff's July 16, 2017 Motion for Preliminary Injunction (Doc. 2), in which Plaintiff seeks an order “prohibiting [Defendant] Miami [University] from imposing . . . disciplinary sanctions against John [Nokes]”; and (2) Plaintiff's August 21, 2017 Motion to Strike Defendants' Response to Plaintiff's Notice of Supplemental Authority (Doc. 27). Consistent with Plaintiff's August 3, 2017 motion for a temporary restraining order (Doc. 14), Plaintiff also seeks an order preliminarily enjoining Defendants from releasing or otherwise publicly disclosing Plaintiff's name until this matter is resolved on the merits. Matters relating to the requested Rule 65 relief have been fully briefed, with each party also submitting post-hearing briefs (Doc. 23; Doc. 24) after the August 10, 2017 preliminary injunction hearing.[1]

         I. BACKGROUND

         Plaintiff - known as John Nokes for purposes of this lawsuit - is an undergraduate student at Defendant Miami University who has completed four semesters of coursework. Defendant Miami University has suspended John Nokes for approximately two years for allegedly engaging in sexual misconduct with another student, Jane Roe. Section 103A of Defendant Miami University's “Code of Student Conduct” defines sexual misconduct as “[a]ny sexual act directed against another person, without the consent of the victim, including instances where the victim is incapable of giving consent.” (Doc. 1; PAGEID# 70). Under Section 103A of the Code, consent does not exist, inter alia, where sexual contact is initiated by force or while a participant is “severely intoxicated.” (Id. at 70-71).

         Plaintiff alleges that, after a procedurally defective disciplinary hearing, a hearing panel acting on behalf of Defendant Miami University found him responsible for sexual misconduct and informed Plaintiff that he was suspended from Defendant Miami University from April 6, 2017 through May 15, 2019. (Doc. 1; PAGEID# 28). On July 16, 2017, Plaintiff filed a Complaint for declaratory judgment, violation of 42 U.S.C. §1983, violation of Title IX, and injunctive relief against Defendants Miami University, Susan Vaughn, Steven Elliott, Jayne Brownell, and Michael Curme. (Doc. 1). Specifically, Plaintiff claims that his due process rights were violated because: (1) he was afforded inadequate notice of the nature of the allegations against him; and (2) he was deprived of his alleged right to confront adverse witnesses through cross-examination. The Parties acknowledge that this Court is not a “super appeals” court reviewing the decision of the disciplinary panel; rather, the Court is determining issues relating to Constitutional due process in the context of university disciplinary proceedings. Accordingly, the background set forth below relates to both: (A) the process Plaintiff received from Defendant Miami University; and (B) the procedural posture of the instant lawsuit.

         A. Defendant Miami University's Disciplinary Proceeding against Plaintiff

         It is undisputed that, in November 2016, Plaintiff and Jane Roe had sexual contact. Five months later, Jane Roe reported that she had been sexually assaulted by Plaintiff to Defendant Miami University's Office of Ethics and Student Conflict Resolution (“OESCR”). Thereafter, Defendant Miami University initiated a disciplinary proceeding against Plaintiff.

         1. April 5, 2017 Notice of Violation

         On April 5, 2017, the University provided Plaintiff with a Notice of Violation alleging that Plaintiff committed sexual assault by the use of force or threat of force, in violation of Section 103A (Sexual Assault). (Id. at 31) Specifically, the Notice of Violation stated as follows:

“The [OESCR] is in receipt of a report from [Jane Roe]. Specifically, on November 17, 2016, you allegedly penetrated [Jane Roe] with your fingers and performed unwanted oral sex on her in an alleyway by Bishop Hall. You allegedly continued even when she showed resistance. Furthermore, [Jane Roe] reported that she had to use the restroom, and as she entered the restroom in Bishop Hall, you allegedly entered with her, holding her head down to perform oral sex on you.
This incident is an alleged violation of the Student Conduct Regulation- Section(s) 103A (Sexual Assault)- 2 Counts.

(Doc. 17-1; PAGEID# 544) (emphasis in original). The face of the Notice is silent on the issue of intoxication.

         2. April 6, 2017 Summary Hearing

         The next day, Defendant Miami University held a summary suspension hearing. (Doc. 11-1). The foregoing hearing did not address the merits of Jane Roe's accusation, and instead focused on whether Plaintiff would be permitted to remain on campus during the disciplinary process. The Dean of Students presided, determined that Plaintiff presented no threat to the student body, and allowed Plaintiff to remain. (Doc. 11-1).

         3. Receipt of Jane Roe's Statements/Hearing Packet

         Plaintiff received Jane Roe's first written statement (Doc. 17-1; PAGEID# 546) on April 6, 2017. (Vaughn Decl. at ¶4). The statement reads as follows:

My name is [Jane Roe] and I am currently a sophomore at Miami University. I had a conference with [Miami employee] this afternoon and she suggested that I write this complaint as soon as possible because it is the end of the year.
I would like to report another student on campus, [John Nokes], for a sexual assault that occurred on Thursday November 17thtransitioning to the morning of Friday November 17th, 2016. This event took place just outside of Bishop residence hall and also, inside Bishop as well which is his current residence hall. While we were both under the influence and I wish I could count this as a "drunken mistake, " but his intent for the act was made even more clearly apparent as the months went on.
I have witnesses that can confirm that his intent was to have sex with me by the end of the night which he concluded could be done after at least buying me $28 in alcoholic beverages. He offered to walk me home and sent the other male away so he could walk me home himself. We were friends so I thought nothing of this at the time. We he [sic] asked if we could "hookup, " I said no and made it clear that I was not interested in anything, but kissing. He puled [sic] me into the alleyway by Bishop, pulled up my dress and pulled down my panties. His form of making out consisted of him penetrating me with his fingers and him preforming [sic] unwanted oral sex on me. When I showed resistance he said, "come on it will be funny, " and proceeded to continue against my hesitation. When I stumbled and almost fell on the sidewalk he decided that it was a good idea to try and have sex with me. I realized that I needed to use the restroom when he was already pulling to into his hall and taking me up to the second floor single restroom. I remember my confusion because I thought he was trying to enter the women's restroom. Then I remember my head being held down as I preformed [sic] oral sex on him. I tried to pull back and found resistance. After he was done it was about lam on that Friday. He insisted on walking me home to [residence hall] because I was too drunk. It was at that point that he started saying things like, "Was what we did wrong? Wow you're so drunk you need to walk straight. And the ultimate shocker, "You're not gonna sue me right?"
Let me know what other sort of information is needed and I can be contacted by email.”

(Doc. 17-1; PAGEID# 546-547).

         Plaintiff received Jane Roe's second written statement (Doc. 17-1: PAGEID# 600) on April 21, 2017, seven days before the hearing, along with the rest of the hearing packet. The second statement reads as follows:

“The night of November 17th, the group when [sic] to pitchers at 45 around 9:30pm. At that time [John Nokes] had bought me a pitcher of alcohol at the bar. I had most of the pitcher and was drinking from other pitchers. We went down to the hatch at about 10:00pm and continued drinking. [John] seemed to be drinking some as well. At about 11pn [sic] the group went to MIA after finishing the pitchers and [John] immediately offered to buy me a drink (Peach Bellini). In a relatively short period afterwards he bought me another one. [John] bought a Makers on the rocks and I drank some of that too. He made sure to get a seat next to me and even asked people to move so he could sit next to me. I drink part of my friend's [] beer. At that point I left the bar with [John Nokes] and [friend] at around 12:15. Walking towards Wells Hall, [John] sends [friend] away and I am left alone with him. [John] asks me if I want to hookup and suggests the single bathroom on his floor. I said, "No, I don't like to sleep around." I kissed him with the intention of not having sex. I was pulled into an alley to the side of Bishop visibly stumbling and slurring. He squatted down in the leaves attempting to preform [sic] oral sex on me even with my hesitation. He removed my underwear and said, "Come on it will be funny." He penetrated me with his fingers and his tongue while I struggled to stand. He kept commenting on how drunk I was. I said I needed to go to the restroom and he said, "Yeah that's where we are going, " as he pulled me towards Bishop Hall. I remember asking to take the elevator because I was so exhausted. He walked in front of me to the bathroom and I remember my confusion when he opened the door. I thought he was trying to enter the women's restroom, but it was the single he previously talked about. I felt uncomfortable using the restroom in front of him and I felt very nervous. He sat on the bathroom bench and motioned me over. We kissed and he undid his pants. I did not say yes or no, but felt pressured to preform [sic] oral sex. When I tried to pull back I felt pressure on the back of my head. Once he was finished I yelled at him for I had not been able to breathe and was obviously shaken. I couldn't believe what had happened. I ran out of the bathroom and he chased after me catching the elevator door before it closed. He asked, "Was that okay? Was that bad what we did?" I was scared and ashamed so I said no. He kept pace with me making sure that I would get home because I was, "So drunk." I'm pretty sure I tried to sit down at one point and he kept me walking. Then he said, "You're not going to sue me right." At that point I was close to tears. He dropped me off at [residence hall] to which my roommate held me while I cried in our room. Minutes later he texted me at around lam which are attached with this packet of documents.”

(Doc. 17-1; PAGEID# 600). Although the term “severely intoxicated” is never used, each statement discusses alcohol consumption.

         4. April 28, 2017 Disciplinary Hearing

         At the April 28, 2017 hearing, Defendant Susan Vaughn presided. She began with remarks relating to the nature of the accusations against Plaintiff, and asked him to formally “respond” to the accusations as stated in the Notice of Violation. (Doc. 11-2; PAGEID# 188-189). Specifically, the allegedly non-consensual conduct occurring outside Bishop Hall was treated as one charge of sexual misconduct, and the allegedly non-consensual conduct occurring inside Bishop Hall was treated as a separate charge of sexual misconduct. (Id.). Plaintiff denied responsibility for both charges. (Id.).

         Thereafter, Plaintiff was permitted to give an opening statement. In summary, Plaintiff stated that, on the night in question, he and several friends - including Jane Roe - made plans to meet at a bar in Oxford, Ohio. (Id.). They were going out, in part, to celebrate a friend's birthday. (Id.). According to Plaintiff, he planned to make it a relatively early night because he had a flight in the morning. (Id. at 193). At approximately 9:30 p.m., Plaintiff left his residence hall to walk to friends' dorms, and afterward the bar. (Id. at 189). Upon meeting with friends, Jane Roe's friend (who later submitted a written statement on behalf of Jane Roe) allegedly “made a point to say, wow, doesn't [Jane] look great tonight.” (Id. at 190). Plaintiff said he thought this was “odd” because he thought Jane Roe was dating Plaintiff's best friend (who later wrote a statement on behalf of Plaintiff, then attempted to recant it).[2] Plaintiff testified to drinking with friends at the bar, and buying Jane Roe a drink at her request. (Id. at 191). When group photographs were taken, Plaintiff said he was taken “off guard” when Jane Roe grabbed onto his shirt and “leaned over onto [his] shoulder.” (Id. at 192).

         Plaintiff testified that the group later changed locations to a second bar. (Id. at 193). Before going up to the bar to buy drinks, Plaintiff asked his friends if they wanted anything, and Jane Roe and others indicated that they did. (Id.). Plaintiff admitted to buying Jane Roe and others drinks that night. (Id.). Slightly after midnight, a friend in the group decided to leave and “all of us kind of realized that it was getting late[.]” (Id. at 194). Plaintiff allegedly announced that he was going to leave, and another friend stood up to leave with him; thereafter, “[Jane Roe] followed us outside the bar.” (Id.). Plaintiff's friend split off at one of the intersections, but “[Jane Roe] followed along and continued walking in [Plaintiff's] direction.” (Id. at 195). Plaintiff testified that Jane Roe grabbed onto his hand. (Id.) They allegedly continued to hold hands, and Plaintiff and Jane Roe allegedly started talking about “hooking up” that night. (Id.). According to Plaintiff, Jane Roe said that she did not “want to have sex, ” but “we can do other things.” (Id.). Plaintiff testified that he said, “okay, that sounds fine with me, ” so they “walked into a pair of bushes that were standing directly facing King Library” where they began kissing for three or four minutes. (Id.). Plaintiff admitted to performing oral sex on Jane Roe, but only after allegedly telling her he “would like to perform oral sex on her, ” which he did for about five minutes with “no hesitation” from Jane Roe. (Id. at 196). Afterward, they continued to kiss and Jane Roe allegedly “grabbed the general area of [Plaintiff's] pants and began rubbing that area for about 30 seconds or so.” (Id. at 197). He started to unzip his pants, but Jane Roe allegedly said “what are you doing” and pointed to a “window a foot above us” at King Library. (Id.). King Library was open and students were there studying. (Id.). Plaintiff allegedly told Jane Roe that his roommate was sleeping in his dorm room, but made the suggestion that they go to a private bathroom in his residence hall, to which she allegedly agreed. (Id.). Plaintiff testified that Plaintiff and Jane Roe walked past King Library to his residence hall. (Id.). When they entered the residence hall, they allegedly passed the women's restroom on the first floor in order to take the elevator to the second floor. (Id.). Jane Roe allegedly continued to kiss Plaintiff in the elevator. (Id. at 198).

         According to Plaintiff, when they arrived in the second floor private bathroom, he sat on the handicap seat inside the large shower. (Id. at 199). Jane Roe allegedly followed him into the shower, set her things down, and “straddled” Plaintiff. (Id.).[3] They allegedly began kissing, she allegedly rubbed “the general area of [his] pants and began doing the exact same thing as she did outside.” (Id. at 199). According to Plaintiff, Plaintiff unzipped his pants, and he and Jane Roe discussed “whether [they] were going to have sex or not.” (Id.). They allegedly agreed not to have sex because “neither of [them] had a condom.” (Id.). At that point, Jane Roe allegedly “kind of put her hand on [Plaintiff's] shoulder so [he] could sit back down, ” and “under her own power, 100 percent sat there on her knees and began to perform oral sex on [Plaintiff].” (Id.). Plaintiff claims that for five minutes he had his hands behind his head, and he only ever “laid a hand on her . . . [to] push her hair away from her face when we were having that conversation” about where she wanted him to “finish.” (Id.).

         Afterward, Plaintiff walked Jane Roe home. (Id. at 200). The next day, Jane Roe - who admittedly was already “involved” with a mutual friend (Id. at 389) - sent Plaintiff a series of text messages expressing disgust at the behavior from the night before. (Doc. 17-1; PAGEID# 608). Plaintiff responded to the text messages, agreeing that their behavior was a “horrible decision.” (Id. at 610).[4]

         Several witnesses testified on behalf of Plaintiff.[5] Plaintiff's witnesses, including Plaintiff himself, were questioned extensively by the panel regarding alcohol consumption on the night in question. At one point, two members of the hearing panel - including Defendant Vaughn -suggested that any alcohol consumption eliminated Jane Roe's ability to consent:

MR. SCOTT: Do you know what the training says about alcohol and consent?
MR. [JOHN NOKES]: Which training?
MR. SCOTT: I think it's on this training that you've gone through.
MR. [JOHN NOKES]: It's on this training?
MR. SCOTT: What does it say about alcohol?
MR. [JOHN NOKES]: That an excess of alcohol is not -- an excess of alcohol does not -- you can't give consent if you ...

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