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Hewlett v. Utah State University

United States District Court, D. Utah

February 8, 2018

VICTORIA HEWLETT, Plaintiff,
v.
UTAH STATE UNIVERSITY, SIGMA CHI CORPORATION, GAMMA KAPPA ALUMNI FOUNDATION, GAMMA KAPPA, ERIC OLSEN, KRYSTIN DESCHAMPS, KEVIN WEBB, JASON RELOPEZ, GAMMA KAPPA HOUSE CORPORATION, and Jan and Jane Does I-XX, Defendants.

          MEMORANDUM DECISION AND ORDER: • GRANTING IN PART AND DENYING IN PART [82] MOTION TO DISMISS AND • GRANTING IN PART AND DENYING IN PART [93] MOTION TO AMEND

          DAVID NUFFER UNITED STATES DISTRICT JUDGE.

         Defendant Jason Relopez was convicted for attacking plaintiff Victoria Hewlett at a party at the Gamma Kappa chapter house of the Sigma Chi fraternity (collectively, “Gamma Kappa”). At the time of the alleged[1] events at the Gamma Kappa house on July 11, 2015 (the “Incident”), both Relopez and Hewlett were students at Utah State University (“Utah State”). Hewlett has filed this civil action against Relopez, Gamma Kappa, Utah State, and three administrators at Utah State (the “Personnel Defendants”), claiming damages under theories of tort, civil rights, and contract law. This Order decides two motions filed in the case: a motion to dismiss and a motion to amend the complaint.

         Utah State and the Personnel Defendants moved to dismiss the contract claim, and the Personnel Defendants moved to dismiss the Section 1983 claims against them on qualified immunity grounds (the “Motion to Dismiss”).[2] Hewlett opposes the Motion to Dismiss.[3]

         The Motion to Dismiss is granted in part and denied in part. The Personnel Defendants are protected from suit by qualified immunity. Hewlett alleges that the Personnel Defendants could have done more to protect and help her. But the alleged failures do not constitute a violation of clearly established constitutional rights, as required to subject individual state actors to suit. The Section 1983 claim therefore must be dismissed.

         The contract claim against the Personnel Defendants is dismissed on Plaintiff's agreement.[4] But the contract claim against Utah State is not dismissed. The complaint sufficiently pleads the elements of a claim for breach of contract. However, the issue raised by Utah State-whether a university code of conduct can be mutually enforced as a contract-is an open question of Utah state law. It may be that this question should be certified to the Utah Supreme Court.

         While briefing was pending on the Motion to Dismiss, Hewlett moved for leave to file a Second Amended Complaint (the “Motion to Amend”).[5] The Motion to Amend is timely and would not prejudice the defendants at this early stage of the proceedings. The proposed amendments refine Hewlett's legal claims without expanding upon the factual allegations. The Motion to Amend is granted as to the proposed amendments to Hewlett's contract claim. However, because the Section 1983 claim is dismissed on qualified immunity grounds, even taking into consideration Hewlett's proposed amendments, the Motion to Amend the Section 1983 claim is denied for futility.

         Table of Contents

         Standard of Review on Motion to Dismiss ..................................................................................... 3

         Background ..................................................................................................................................... 4

         The Personnel Defendants .................................................................................................. 4

         The Student Code ................................................................................................................ 5

         Discussion ....................................................................................................................................... 6

         The Personnel Defendants Are Dismissed for Qualified Immunity. . ................................. 6

         The Contract Claim Is Not Dismissed, but an Issue of State Law May Be Certified. . ..... 10

         Hewlett Is Granted Leave to Amend Her Breach of Contract Claim Only. . .................... 12

         Order ........................................................................................................................................... 13

         STANDARD OF REVIEW ON MOTION TO DISMISS

         On a motion to dismiss under Rule 12(b)(6), [6] courts accept the well-pleaded allegations of the complaint as true and construe them in the light most favorable to the plaintiff.[7]Conclusory allegations without factual averments are not afforded the same presumption of truth on a motion to dismiss.[8] Accepting the plaintiff's allegations of fact as true enables a court to determine whether the claim states enough facts to be plausible on its face.[9] Accordingly, the facts set forth in the following Background summary are drawn from Hewlett's complaint and taken as true only for purposes of the Motion to Dismiss.

         BACKGROUND

         The motions decided by this Order concern two of the eleven causes of action asserted in Hewlett's complaint: (1) the Section 1983 civil rights claim against the Personnel Defendants and (2) the contract claim against Utah State.[10] The relevant background for the Order comes from Hewlett's proposed Second Amended Complaint and Jury Demand (the “Proposed Complaint”).[11] The Proposed Complaint is largely identical to the operative First Amended Complaint (the “Operative Complaint”), [12] but includes amendments to the Section 1983 and contract claims. By considering the claims at issue with Hewlett's proposed amendments, the Motion to Dismiss and Motion to Amend can be decided together.

         The Personnel Defendants

         The three named Personnel Defendants are employees of Utah State serving in the following positions: Associate Vice President for Student Services, Associate Director of Student Affairs (and liaison with the “Greek community” of fraternities and sororities), and Student Conduct Coordinator and Assessment Specialist.[13]

         Hewlett alleges that the Personnel Defendants failed before the Incident to recognize and mitigate the risk that fraternity parties generally and Relopez specifically posed to Hewlett and the Utah State community. Hewlett asserts that Utah State and the Personnel Defendants were aware of a history of fraternity parties with heavy drinking and reported incidents of sexual assault but “chose not to take appropriate measures to ensure that these dangerous practices were discontinued.”[14] Also, five other women at Utah State had reported to officials that they had been sexually assaulted by Relopez.[15] The Personnel Defendants were aware of the reports.[16]The Personnel Defendants met with Relopez about eight months before the Incident to discuss allegations of rape.[17] The Personnel Defendants communicated that Relopez was on Utah State's “radar” but stopped short of conducting a factual investigation into the claims against Relopez.[18]Relopez was not disciplined or removed from Utah State.[19]

         Hewlett further alleges that the Personnel Defendants failed to support her recovery and reintegration at Utah State following the Incident. She asserts that after reporting the Incident to Kevin Webb, neither the Personnel Defendants not any other Utah State official offered or provided necessary services.[20] As a result, Hewlett left Utah State for another university.[21]

         The Student Code

         Utah State maintains The Code of Policies and Procedures for Students at Utah State University (the “Student Code”).[22] At all times relevant to his case, students enrolled at Utah State, including Relopez, were subject to the Student Code.[23] The Student Code is enforced to control students' on- and off-campus behavior.[24] The Student Code provides in part that:

Utah State University will not tolerate sexual assault/violence in any form, including incidents which arise in acquaintance and date situations. Where there is reasonable cause that a sexual assault/violence has occurred, the University will pursue strong disciplinary action, including the possibility of suspension or expulsion from the University.

         Hewlett asserts that the Student Code is a contract between Utah State and its students, including Hewlett and Relopez.[25] Utah State breached the Student Code by “failing to initiate and/or follow procedures and guidelines as to the discipline of a sexually violent student who caused harm to Ms. Hewlett.”[26]

         DISCUSSION

         The Personnel Defendants Are Dismissed for Qualified Immunity.

         As employees of the state, the Personnel Defendants are entitled to raise the defense of qualified immunity. “The doctrine of qualified immunity protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”[27] Once a defendant raises qualified immunity, the plaintiff bears the heavy burden of proving (1) that the facts alleged make out a violation of a constitutional right, and (2) that a reasonable municipal official would have known they were violating such a constitutional right.[28] “If the plaintiff fails to satisfy either part of the two-part inquiry, the court must grant the defendant qualified immunity.”[29]

         Hewlett's allegations show an undeniable gap between what the Personnel Defendants did to help Hewlett and what they could have done. Presented with prior accusations against Relopez of abuse, assault, and rape, the Personnel Defendants met with Relopez and indicated that he would be watched closely.[30] But they did not expel Relopez or take any other disciplinary action at that time, and they did not conduct an independent investigation into the prior claims against him.[31] As a result, Relopez was still a part of the Utah State community when the Incident occurred. Nor did the Personnel Defendants find ways after the Incident to help Hewlett recover from the Incident and resume her education at Utah State.[32]

         Unless Hewlett can allege a violation of a “clearly established” constitutional right, the Section 1983 claim[33] against the Personnel Defendants must be dismissed with prejudice because of their qualified immunity.[34] Hewlett asserts violations of both the Equal Protection Clause and the Due Process Clause.[35] Both constitutional claims are suggested by the Operative Complaint, but they are more stated more specifically in the Proposed Complaint. Both claims rely upon the same alleged violation of Hewlett's rights: that the Personnel Defendants failed to intervene to protect Hewlett from Relopez, a third party known to be a potential threat of sexual harassment and assault. Whether the gap between what the Personnel Defendants did and what they could have done constitutes a violation of the Equal Protection Clause or the Due Process Clause need not be answered on this Motion to Dismiss if the right on which Hewlett relies is not clearly established under law.[36]

         Case law does not support Hewlett's claim that the Personnel Defendants violated her clearly established rights. Sexual harassment under color of state law has constituted a clear violation of the Fourteenth Amendment right to equal protection of the laws in the Tenth Circuit since no later than 1989.[37] However, no clear law has been established sufficient to impose Section 1983 liability against a state actor for underreacting to a known potential threat of sexual harassment or assault by a third party acting outside of the mantle of state position and authority. Perhaps this may be clearly established law someday, but no precedent presently establishes a claim on these facts.

         A state's failure to protect an individual against private violence is not a violation of due process rights by the state unless (1) the state assumes control over an individual sufficient to trigger an affirmative duty to provide protection to the individual or (2) the state created the danger that harmed the individual.[38] Hewlett has not alleged a special relationship of control over her by Utah State sufficient to trigger an affirmative duty to protect her.[39] She has alleged that Utah State created the danger that harmed her.[40]

         For a state defendant to create the danger that harmed a plaintiff requires that the defendant recognized the unreasonable risk and actually intended to expose the plaintiff to such risks without regard to the consequences of the plaintiff.[41] The Due Process Clause is not a guarantee against incorrect or ill-advised government decisions.[42] Failing to eliminate a known risk does not give rise to Section 1983 liability; instead, affirmative conduct is a necessary precondition to application of the state-created danger theory.[43] Other federal courts have rejected the state-created danger theory in cases involving “student-on-student violence, ” even when school officials were alleged to have known of a potential threat, on the ground that the schools did not affirmatively act to create the danger.[44] Hewlett's claims likewise fall short of the alleging state-created danger.

         Hewlett argues that her Section 1983 claim is supported by clearly established law, including the Tenth Circuit's 1999 decision in Murrell v. School District No. 1, Denver, Colorado.[45] In Murrell, the Tenth Circuit found that deliberate indifference to sexual harassment by school employees exercising supervisory authority over students is a clearly established violation of the Fourteenth Amendment's Equal Protection Clause.[46] Murrell involved sexual harassment at a public school by one student against another under the supervision of school personnel who were aware of the risks posed by the offending student.[47] Hewlett's case is distinguishable from Murrell in that the Incident did not take place at school under the school's supervision. The potential threat Relopez posed to Hewlett, of which the Personnel Defendants were allegedly aware, was realized off campus and outside of the Personnel Defendants' supervision. In Murrell, school personnel stood by, with knowledge that (a) Murrell's daughter Jones was a victim of assault at a prior school due to her developmental disabilities; (b) the perpetrator was a known risk generally and ...


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