Doe v. Arizona Board of Regents et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
John Doe,
Plaintiff,
v.
Arizona Board of Regents, et al.,
Defendants.
No. CV-24-01829-PHX-SMB
ORDER
Pending before the Court is Defendants Arizona Board of Regents (the “Board”),
Dr. Joanne Vogel, Ms. Jodi Preudhomme, Ms. Elizabeth Ojeda, and Ms. Dawn Russo’s
(the “Individual Defendants”) (collectively “Defendants”) Motion to Dismiss (Doc. 76).
Also before the Court is Plaintiff John Doe’s (“Plaintiff”) Motion to File a Sur-Reply (Doc.
81). Having reviewed the briefing, the Court denies Plaintiff’s Motion to File a Sur-Reply
and grants in part and denies in part Defendant’s Motion to Dismiss.
I. BACKGROUND
This case arises from a sexual encounter between Plaintiff and Jane Roe (“Jane”)
on August 21, 2021 in Jane’s car on Arizona State University’s (“ASU”) campus. (Doc.
79 at 1.) Plaintiff and Jane filed student conduct complaints against one another with
ASU’s Office of Student Rights and Responsibilities regarding the encounter. (Id.) Jane
then filed a Title IX Complaint against Plaintiff with the school and Plaintiff was eventually
adjudicated responsible for sexual misconduct. (Id. at 2.) Plaintiff’s Second Amended
Complaint (“SAC”) contests this finding and argues it is the result of illegal discrimination
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and unfair disciplinary procedures. (Doc. 62.) Defendants now move to dismiss the SAC
pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6). (Doc. 76.)
II. LEGAL STANDARD
To survive a Rule 12(b)(6) motion for failure to state a claim, a complaint must meet
the requirements of Rule 8(a)(2). Rule 8(a)(2) requires a “short and plain statement of the
claim showing that the pleader is entitled to relief,” so that the defendant has “fair notice
of what the . . . claim is and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41,
47 (1957)). This notice exists if the pleader sets forth “factual content that allows the court
to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id.
Dismissal under Rule 12(b)(6) “can be based on the lack of a cognizable legal theory
or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v.
Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). A complaint that sets forth a
cognizable legal theory will survive a motion to dismiss if it contains sufficient factual
matter, which, if accepted as true, states a claim to relief that is “plausible on its face.”
Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). Plausibility does not equal
“probability,” but requires “more than a sheer possibility that a defendant has acted
unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between possibility and plausibility . . . .’”
Id. (quoting Twombly, 550 U.S. at 557).
In ruling on a Rule 12(b)(6) motion to dismiss, the well-pleaded factual allegations
are taken as true and construed in the light most favorable to the nonmoving party. Cousins
v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). However, legal conclusions couched as
factual allegations are not given a presumption of truthfulness, and “conclusory allegations
of law and unwarranted inferences are not sufficient to defeat a motion to dismiss.” Pareto
v. FDIC, 139 F.3d 696, 699 (9th Cir. 1998). A court ordinarily may not consider evidence
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outside the pleadings when ruling on a Rule 12(b)(6) motion to dismiss. See United States
v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003). “A court may, however, consider
materials—documents attached to the complaint, documents incorporated by reference in
the complaint, or matters of judicial notice—without converting the motion to dismiss into
a motion for summary judgment.” Id. at 908.
III. DISCUSSION
Plaintiff’s SAC asserts the following claims against Defendants: (1) violation of
Title IX against the Board (Claim I); (2) violation of 42 U.S.C. § 1983 and the Due Process
and Equal Protection Clauses of the U.S. Constitution against the Individual Defendants in
their individual and official capacities (Claim II); (3) breach of contract against the Board
(Claim III); (4) breach of the covenant of good faith and fair dealing against the Board
(Claim IV); and (5) intentional infliction of emotional distress (“IIED”) against the Board
(Claim V). (Doc. 62 at 45–63.) Defendants move to dismiss each claim pursuant to Rule
12(b)(6). (Doc. 76 at 1.) Additionally, Defendants argue a portion of Plaintiff’s federal
and state claims are “time barred by applicable statutes of limitations and Arizona’s notice
of claim statute.” (Id. at 6.)
A. Claims for Relief
1. Title IX
Defendants argue Plaintiff’s Title IX claim fails to establish a plausible inference of
sex-based discrimination. (Doc. 76 at 10.) The Court disagrees.
“To state a Title IX claim, a plaintiff must plead that: (1) the defendant educational
institution[] receives federal funding; (2) the plaintiff was excluded from participation in,
denied the benefits of, or subjected to discrimination under any education program or
activity[;] and (3) the latter occurred on the basis of sex.” Schwake v. Arizona Bd. of
Regents, 967 F.3d 940, 946 (9th Cir. 2020). “To survive a motion to dismiss, a Title IX
plaintiff need only provide enough facts to state a claim to relief that is plausible on its
face.” Id. at 947 (emphasis in original) (citation modified). However, “sex discrimination
need not be the only plausible explanation or even the most plausible explanation for a
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Title IX claim to proceed.” Doe v. Regents of Univ. of Cal., 23 F.4th 930, 936 (9th Cir.
2022) (citation modified).
When evaluating the plausibility of similar Title IX claims, the Ninth Circuit looks
to the following: (1) “allegations of background indicia of sex discrimination, namely, the
pressure that the University faced concerning its handling of sexual misconduct complaints
and gender-based decisionmaking against men in sexual misconduct disciplinary cases”;
and (2) “the allegations concerning the disciplinary case against [the plaintiff].” Schwake,
967 F.3d at 948. Both allegations are necessary to survive a motion to dismiss. Doe, 23
F.4th at 939.
a. Background Indicia of Sex Discrimination
Defendants argue that Plaintiff’s evidence of background indicia of sex
discrimination is conclusory and thus insufficient to survive a motion to dismiss. (Doc. 76
at 9.) The Court disagrees.
In Schwake, the Ninth Circuit clarified the level of detail necessary to successfully
plead evidence of background indicia of sex discrimination. 967 F.3d at 949. There, the
Plaintiff—a male student similarly bringing a Title IX discriminatory claim regarding a
university’s handling of sexual misconduct complaints—alleged that the university faced
external pressure due to a Department of Education (“DOE”) investigation for possible
mishandling of sexual misconduct complaints. Id. at 948. The plaintiff also alleged that
“male respondents in student disciplinary proceedings involving alleged sexual harassment
and misconduct cases at the University are invariably found guilty, regardless of the
evidence or lack thereof.” Id. at 949 (citation modified). The plaintiff added that he was
“aware of recent University disciplinary cases against male respondents in alleged sexual
misconduct cases who were all found guilty regardless of the evidence or lack thereof.” Id.
(citation modified). The Ninth Circuit held that “[t]he district court was not free to ignore
this non-conclusory and relevant factual allegation.” Id.
The Ninth Circuit rejected the argument that these allegations were conclusory
unless the plaintiff included percentages of male students found guilty per semester. Id. It
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explained that “[t]he absence of this level of detail from [the plaintiff’s] complaint does
not render [the plaintiff’s] allegation conclusory or insufficient.” Id. The court reasoned
that (1) “[t]here is no heightened pleading standard for Title IX claims,” and (2) “[i]t may
be difficult for a plaintiff to know the full extent of alleged discrimination in
decisionmaking before discovery allows a plaintiff to unearth information controlled by
the defendant.” Id. Therefore, the Ninth Circuit held that the plaintiff’s allegations
established background indicia of sex discrimination relevant to a Title IX claim.
Plaintiff makes a similar showing here. Plaintiff alleges the following:
(1) Defendants faced a history of being under investigation by the DOE regarding Title IX
investigations; (2) Defendants faced two DOE Office of Civil Rights complaints and
investigations that “were contemporaneous to the underlying incident”; (3) the majority of
individuals reporting sexual misconduct in 2023 were female against males, resulting in a
disproportionate amount of males being found responsible; (4) Defendants faced a history
of accusations from ASU students that the University is “not doing enough when alleged
incidents of sexual misconduct are reported”; and (5) there were ongoing protests resulting
in “ASU frequently caving into pressure and meeting the demands requested by female
alleged victims and survivors.” (Doc. 62 at 41–43.) These allegations parallel those in
Schwake. Therefore, the Court finds that Plaintiff’s SAC sufficiently establishes a
background indicia of sex discrimination.
b. Plaintiff’s Disciplinary Case
Defendants also argue that Plaintiff does not allege specific facts from his case
indicating sex-based discrimination. (Doc. 76 at 11.) The Court disagrees.
Plaintiff alleges that both he and Jane initiated conduct complaints against the other
under ASU’s Student Code of Conduct regarding the same sexual encounter. (Doc. 62
at 21.) Plaintiff alleges ASU “promptly closed Jane’s conduct case against [Plaintiff]
because it recognized that the conduct Jane complained of, despite being the same conduct
that [Plaintiff] complained of, fell under Title IX.” (Doc. 62 at 25.) Thus, Plaintiff states
Ms. Ojeda gave Jane “clear instructions” to file a written Title IX complaint against
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Plaintiff with ASU’s Title IX office. (Id.) However, Plaintiff states his conduct complaint
was not closed. (Id. at 21.) He states ASU investigated his conduct complaint against Jane
only for “physical harm” and “harassment” and not sexual misconduct. (Id.) Because of
this, Plaintiff states he “was not afforded procedural protection due under Title IX.” (Id.
at 22.) Plaintiff alleges ASU treated his “complaint differently than Jane’s based solely on
the sex of the individuals making the complaint.” (Id.)
Plaintiff also alleges that after the initial hearing found that he was not responsible
for sexual misconduct, Jane appealed and “advised ASU that she would pursue both Title
IX and Clery Act claims—which carry a potential fine of $69,733 per violation—against
ASU for allegedly violating her rights during the process.” (Id. at 30–31.) Plaintiff states
Jane also threated to file these complaints with the DOE. (Id. at 31.) On appeal, the Appeal
Decision Maker, Dr. Vogel, remanded for a rehearing based on procedural irregularities.
(Id. at 32.) Plaintiff alleges that Dr. Vogel was biased toward Jane and female
complainants, and he had no opportunity to object to her reviewing the appeal. (Id. at 31.)
On remand, Plaintiff was once again found not responsible for sexual misconduct. (Id.)
However, Plaintiff alleges ASU granted Jane an impermissible second appeal. (Id. at 34.)
Dr. Vogel also reviewed the second appeal. (Id.) Plaintiff states he again did not have an
opportunity to object to Dr. Vogel serving as the Appeal Decision Maker. (Id.) Plaintiff
alleges that on appeal Dr. Vogel ignored the initial investigator’s findings and evidence
favoring Plaintiff. (Id. at 36.) Dr. Vogel then found that Plaintiff committed sexual
misconduct and sanctioned Plaintiff with a one-year suspension. (Id.) Plaintiff states he
was not given a meaningful opportunity to respond to these appeals or provide written input
prior to Dr. Vogel overturning the initial findings. (Id. at 37.)
The Court finds that these allegations support an inference of gender bias. Plaintiff
sufficiently alleges asymmetrical treatment of his sexual misconduct complaint compared
to a similarly situated female. See Austin v. Univ. of Or., 925 F.3d 1133, 1138 (9th Cir.
2019) (holding that “[w]ithout nonconclusory allegations that the male students were
treated any differently than similarly situated female students based on sex” there was no
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plausible inference of gender bias); see also Doe, 23 F.4th at 939 (holding that
asymmetrical enforcement allegations can “lead to a plausible inference of discrimination
on the basis of sex, at least when considered in conjunction with the other well-pleaded
facts regarding external pressures and specific instances of bias”). Additionally, Plaintiff
alleges a one-sided appeal investigation where Dr. Vogel ignored favorable evidence,
reversed two previous findings of no responsibility, and where Plaintiff was neither
permitted to object to Dr. Vogel’s review nor her findings. See Schwake, 967 F.3d at 951
(holding that the plaintiff’s “allegations of the University's one-sided investigation support
an inference of gender bias”).
Taking these allegations as true and viewing them in light most favorable to the
Plaintiff, the Court finds that Plaintiff’s allegations are consistent with his allegations that
Defendants treated male respondents in sexual misconduct disciplinary proceedings
differently. Thus, Plaintiff plausibly alleges a Title IX claim. Defendants’ Motion as to
this claim is denied.
2. § 1983
Defendants argue Plaintiff fails to state a § 1983 claim against the Individual
Defendants because they are immune, and Plaintiff has not “stated a cognizable claim that
the Individual Defendants violated his rights under the Due Process or Equal Protection
clauses.” (Doc. 76 at 16.) The Court agrees in part.
“Qualified immunity shields federal and state officials from money damages unless
a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional
right, and (2) that the right was ‘clearly established’ at the time of the challenged conduct.”
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982)). “Once the defense of qualified immunity is raised by the defendant, the
plaintiff bears the burden of showing that the rights allegedly violated were clearly
established.” LSO, Ltd. v. Stroh, 205 F.3d 1146, 1157 (9th Cir. 2000) (citation modified).
“Thus, a qualified immunity determination involves three inquiries: (1) identification of
the right that has allegedly been violated, (2) the determination of whether that right was
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clearly established such that a reasonable official would have known of it, and (3) the
determination of whether a reasonable officer would have believed that the challenged
conduct was lawful.” Id.
a. The Due Process Clause
“To state a prima facie substantive or procedural due process claim, one must, as a
threshold matter, identify a liberty or property interest protected by the Constitution.”
United States v. Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014). However, the U.S.
Constitution “itself creates no property interests;” instead, such interests are based in state
law. Id.
As Defendants aptly note, Plaintiff asserts a myriad of liberty and property interests.
(Doc. 76 at 18.) Ultimately, Plaintiff asserts Defendants deprived him of “his
constitutionally protected liberty and property interests in his education and reputation.”
(Doc. 62 at 54.) Additionally, Plaintiff asserts Defendants deprived him of due process
when he “could not respond to Jane’s First and Second Appeal” and “was foreclosed from
appealing Defendant Dr. Vogel’s decision.” (Id. at 54–55.) Plaintiff bears the burden of
demonstrating that these rights are clearly established under Arizona law. The Court finds
that Plaintiff fails to do so here.
In his Response, Plaintiff does not rebut Defendant’s argument that Arizona law
does not clearly establish a constitutional right to a university education. Plaintiff’s
omission is understandable; Arizona law does not guarantee such a right. See Unknown
Party v. Ariz. Bd. of Regents, No. CV-18-01623-PHX-DWL, 2019 WL 7282027, at *10
(D. Ariz. Dec. 27, 2019) (holding that “it seems unlikely that a constitutional right to a
university education exists under Arizona law. And even if such a right does exist, it is not
clearly established”). Thus, Plaintiff fails to allege a due process claim regarding his
educational interests.
Plaintiff also fails to establish a cognizable “stigma-plus” due process claim
regarding his reputational interests. “[T]o prove a deprivation of rights under § 1983
pursuant to a ‘stigma-plus’ due process claim, Plaintiffs must establish: (1) the public
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disclosure of a stigmatizing statement by a state actor; (2) the accuracy of which is
contested; (3) plus the denial of some more tangible interest.” Chaudhry v. Aragón, 68
F.4th 1161, 1171 (9th Cir. 2023). The denial of a tangible interest occurs when the
stigmatizing statement is “made in connection with the termination of employment or the
alteration of some right or status recognized by state law.” Wenger v. Monroe, 282 F.3d
1068, 1074 (9th Cir. 2002) (quoting Llamas v. Butte Cmty. Coll. Dist., 238 F.3d 1123, 1129
(9th Cir. 2001)). Failure to establish any of these elements defeats a “stigma-plus” claim.
Id.
Although Plaintiff’s Response alleges Defendants distributed Dr. Vogel’s decision
letter, Plaintiff’s SAC does not make this allegation. (Doc. 62 at 51–56.) This failure alone
defeats Plaintiff’s stigma-plus claim. See Doe v. Or. State Univ., 614 F. Supp. 3d 847, 860
(D. Or. 2022) (finding the individual defendants entitled to qualified immunity because
“Plaintiff fails to satisfy even the first prong of the stigma-plus test because his Complaint
does not allege that [the university] disclosed his suspension”); see also Terry v. Maricopa
Cnty. Cmty. Coll. Dist., 626 F. Supp. 3d 1092, 1098 (D. Ariz. 2022) (“Simply alleging that
the government has stigmatized an individual is an insufficient claim because the
Fourteenth Amendment is not “a font of tort law to be superimposed upon whatever
systems may already be administered by the States.” (quoting Paul v. Davis, 424 U.S. 693,
701 (1976))).
Moreover, Plaintiff fails to establish a denial of a sufficient employment interest.
The Ninth Circuit explains that “liberty interests protected by the Fourteenth Amendment
are implicated only when the government’s stigmatizing statements effectively exclude the
employee completely from her chosen profession.” Blantz v. Cal. Dep’t of Corr. & Rehab.,
727 F.3d 917, 925 (9th Cir. 2013). Here, Plaintiff fails to allege that he is completely
excluded from his chosen profession; he only states he lost his employment with ASU.
(Doc. 62 at 52.) However, “[p]eople do not have liberty interests in a specific employer”;
stigmatizing statements only deprive a worker of liberty if they bar a plaintiff from all
employment in their chosen field. Id. (quoting Llamas, 238 F.3d at 1128). Plaintiff does
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not allege such a complete exclusion. Accordingly, Plaintiff fails to allege a due process
claim regarding his reputational interests.
Plaintiff also fails to allege a deprivation of meaningful process. Plaintiff states he
was deprived of due process because he could neither respond to Jane’s first and second
appeals nor appeal Dr. Vogel’s final decision. (Doc. 62 at 54–55.) The Court disagrees.
“The fundamental requirement of due process is the opportunity to be heard ‘at a
meaningful time and in a meaningful manner.’” Mathews v. Eldridge, 424 U.S. 319, 333
(1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). Here, the Individual
Defendants gave Plaintiff such an opportunity. As Defendants point out in their Motion,
Plaintiff’s SAC alleges:
[Plaintiff] had access to the Evidence File and an opportunity to respond,
twice (Doc. 62 ¶¶ 267, 269); he received a Notice of hearing and Charges
(id. ¶ 285); he was “allowed to call witnesses and provide evidence at the
hearing” (id. ¶ 291); he testified (see id. ¶ 293); he “had the opportunity to
cross-examine each party and witness” (id. ¶ 292); and he had the
opportunity to submit a statement in support of Dr. Aska’s Determination
and Amended Determination (Doc. 62-2 at 8, § IV(F)(1)).
(Doc. 76 at 19–20.) Plaintiff does not dispute this process but argues that “Defendants rely
on the process [Plaintiff] was afforded before Dr. Vogel’s involvement.” (Doc. 79 at 19.)
Plaintiff complains that he had no process to address Dr. Vogel’s decision. But this is not
true. Plaintiff is currently pursuing a case in Arizona’s superior court to review Dr. Vogel’s
final administrative decision pursuant to A.R.S. § 12-904. Accordingly, the Court finds
that Plaintiff fails to establish a reasonable inference that the Individual Defendants
deprived Plaintiff of meaningful process throughout the disciplinary proceedings.
Based on the foregoing, the Court finds that Plaintiff fails to state a § 1983 claim
against the Individual Defendants as it relates to alleged violations of the Due Process
Clause.
b. The Equal Protection Clause
“To state a claim under section 1983 for a violation of the Equal Protection Clause,
a plaintiff ‘must show that the defendants acted with an intent or purpose to discriminate
against the plaintiff based upon membership in a protected class,’ and that plaintiff was
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treated differently from persons similarly situated.” Lam v. City & County of San
Francisco, 868 F. Supp. 2d 928, 951 (N.D. Cal. 2012), aff’d, 565 F. App’x 641 (9th Cir.
2014) (quoting Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)).
Defendants argue that Plaintiff fails to identify a similarly situated person. (Doc.
76 at 21.) The Court disagrees. As noted above, Plaintiff’s SAC alleges that both Jane and
Plaintiff initiated conduct complaints with Defendants regarding the same event. Plaintiff
states that Defendants closed Jane’s complaint because it pertained to sexual misconduct
and directed her to file a Title IX claim. (Doc. 62 at 25.) On the other hand, Plaintiff
alleges that he told Defendants he was sexually assaulted when initiating his conduct
complaint, but Defendants did not close his complaint. (Id. at 21.) Further, Plaintiff states
Defendants only investigated Jane for physical harm and harassment, “despite sexual
misconduct being explicitly identified as prohibited conduct” under the Student Code of
Conduct Policy.1 (Id.) Thus, Plaintiff essentially argues that Defendants readily identified
sexual misconduct as the gravamen of Jane’s complaint but construed his complaint as only
alleging harassment. The Court finds such allegations plausibly identify discriminatory
treatment of similarly situated persons. See Vasquez v. County of Los Angeles, 349 F.3d
634, 641 (9th Cir. 2003) (“[I]ndividuals are similarly situated when they have similar jobs
and display similar conduct.”).
Here, both Plaintiff and Jane are students at ASU, went to the same office to
complain of sexual assault based on the same facts, and filed a code of conduct complaint
against the other. Based on the SAC, which the Court assumes is true, it appears the
disparate treatment of these complaints is based on gender. Thus, the Court finds that
Plaintiff has sufficiently pleaded a plausible violation of the Equal Protection Clause.
Accordingly, the Court denies Defendant’s motion to dismiss Plaintiff’s § 1983
claim against the Individual Defendants as it relates to alleged violations of the Equal
1 Defendants do not adequately explain why ASU could not have addressed Plaintiff’s
sexual misconduct allegations under its Student Code of Conduct Policy. It appears the
Policy does contemplate such scenarios: “In sexual misconduct cases, the Dean will
endeavor to make the determination within ninety (90) days from the opening of the
conduct file.” (Doc. 62-3 at 4.)
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Protection Clause.
c. Damages and Prospective Relief
Here, Plaintiff brings a § 1983 claim against the Individual Defendants in their
“individual and official capacities.” (Doc. 62 at 51.) Defendants argue that the Individual
Defendants are immune from damages in their official capacities. Plaintiff does not dispute
this assertion. (Doc. 79 at 20–21.) Defendants are correct.
“[D]amages are not available from state officials sued in their official capacity under
§ 1983.” Hoeg v. Newsom, 728 F. Supp. 3d 1152, 1157 (E.D. Cal. 2024). That is because
“the Eleventh Amendment ‘bars suits for money damages in federal court against a state,
its agencies, and state officials acting in their official capacities.’” Spears v. Ariz. Bd. of
Regents, 372 F. Supp. 3d 893, 923 (D. Ariz. 2019) (quoting Aholelei v. Dep’t of Pub. Safety,
488 F.3d 1144, 1147 (9th Cir. 2007)). Accordingly, any § 1983 claim for money damages
against the Individual Defendants in their official capacity is dismissed.
However, Plaintiff may seek an award of damages against the Individual Defendants
in their “personal capacity,” but only against the “official’s personal assets.” See Kentucky
v. Graham, 473 U.S. 159, 166 (1985). Additionally, “the Eleventh Amendment bar” does
not apply “when private individuals sue state officials in federal court for prospective relief
from ongoing violations of federal law, as opposed to money damages.” K.J. ex rel.
Johnson v. Jackson, 127 F.4th 1239, 1251 (9th Cir. 2025) (citation modified). Here,
Plaintiff asks the Court to “vacate the decision of ASU to suspend [Plaintiff]” and remove
“from his academic record all references to the decision and any other related sanctions or
disciplinary actions.” (Doc. 62 at 64.) The Ninth Circuit holds that “expungement of
information from school records” is a “form of prospective relief” that is not barred by the
Eleventh Amendment. K.J., 127 F.4th at 1251.
Accordingly, Plaintiff may seek damages from the Individual Defendants in their
individual capacity and may seek the above-mentioned prospective relief. However, this
only applies to Plaintiff’s § 1983 claim against the Individual Defendants as it relates to
alleged violations of the Equal Protection Clause.
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3. Breach of Contract
“To state a cause of action for breach of contract, the Plaintiff must plead facts
alleging (1) a contract exists between the plaintiff and defendant; (2) the defendant
breached the contract; and (3) the breach resulted in damage to plaintiff.” Hannibal-Fisher
v. Grand Canyon Univ., 523 F. Supp. 3d 1087, 1093 (D. Ariz. 2021) (citation modified).
“For an enforceable contract to exist, there must be an offer, acceptance, consideration, a
sufficiently specific statement of the parties’ obligations, and mutual assent.” Buckholtz v.
Buckholtz, 435 P.3d 1032, 1035 (Ariz. Ct. App. 2019) (citation modified).
Defendants argue that ASU’s policies and procedures cannot create an enforceable
contract. (Doc. 76 at 24.) Both parties agree that outside jurisdictions recognize that the
relationship between a university and its students is contractual in nature. See, e.g.,
Al-Dabagh v. Case W. Rsrv. Univ., 777 F.3d 355, 359 (6th Cir. 2015) (Ohio); Xiaolu Peter
Yu v. Vassar Coll., 97 F. Supp. 3d 448, 481 (S.D.N.Y. 2015) (New York); Becker v. Wash.
State Univ., 266 P.3d 893, 900 (2011) (Washington). However, as Plaintiff notes, it does
not appear Arizona courts have examined this question. (Doc. 79 at 21.) Thus, the Court
is skeptical a contract exists between ASU and Plaintiff under Arizona law. But even if
there was a contract, the Court is doubtful there is mutual assent.
The Arizona Supreme Court explains that “the ultimate element of contract
formation” is “the question whether the parties manifested assent or intent to be bound.”
Schade v. Diethrich, 760 P.2d 1050, 1058 (Ariz. 1988). Here, ASU maintains unilateral
control over the terms of its student policies and procedures. In ASU’s formal complaint
policy, it states:
The university may amend this document as necessary from time to time.
Amendments may apply to grievances ongoing at the time the amendment is
made, unless the effect of the amendment is to reduce the rights of either
complainants or respondents, in which case the version of this process in
effect at the time the formal complaint was made will be followed.
(Doc. 62-2 at 1.) This language demonstrates that ASU does not intend to be bound by
these policies. See Or. State Univ., 614 F. Supp. 3d at 861 (finding there was no contract
between plaintiff and university because “the provisions of the Code allow [the university]
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to modify at any time,” demonstrating that the university “clearly never manifested assent
to be bound” by the Code).
Plaintiff argues that ASU’s obligation is not illusory because its discretion to amend
the policies is not unlimited. (Doc. 79 at 22–23.) Even so, ASU still has unilateral power
to amend its policies, which is contrary to “traditional contract law.” See Demasse v. ITT
Corp., 984 P.2d 1138, 1144 (Ariz. 1999) (noting that, under “traditional contract law,”
once a contract is formed “a party may no longer unilaterally modify the terms of that
relationship”). Thus, Plaintiff fails to evidence the requisite mutual assent necessary for a
breach of contract claim.2
Plaintiff also cites to two cases from this Court in support of his breach of contract
claim: Hannibal-Fisher v. Grand Canyon University, 523 F. Supp. 3d 1087 (D. Ariz. 2021)
and Little v. Grand Canyon University, 516 F. Supp. 3d 958 (D. Ariz. 2021). However,
these cases are distinguishable and cut against Plaintiff’s claim.
In Hannibal-Fisher, the plaintiff argued breach of contract based on Grand Canyon
University’s (“GCU”) Enrollment Agreement and Housing Contract. 516 F. Supp. 3d
at 1094. First, as to the Enrollment Agreement, the Court found that a contract for
in-person instruction did not exist because the Agreement did not “guarantee any set
format” given the “plain language” reserving the right for GCU to make changes of “any
nature” to its class offerings. Id. at 1094–95. Similarly, here, ASU does not guarantee a
certain complaint process because the plain language of the policy reserves the right to
amend the process as necessary. Second, as to the breach of the Housing Contract,
defendants did not contest the existence of that contract. Id. at 1096. Thus, unlike as is
necessary here, the Court only analyzed whether the plaintiff plausibly alleged a breach of
that contract. Id. Similarly, in Little, the Court only assessed whether GCU breached a
housing contract—not whether that contract existed. 516 F. Supp. 3d at 964–65.
Therefore, both cases do not support Plaintiff’s contention that a contract exists
2 Plaintiff’s alternative argument that there is an implied-in-fact contract fails for similar
reasons. See Pyeatte v. Pyeatte, 661 P.2d 196, 203 (Ariz. Ct. App. 1982) (explaining that
“mutual assent” is “necessary” to establish an “implied-in-fact contract”).
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between ASU and himself. In fact, Hannibal-Fisher undermines this claim. Accordingly,
given the skepticism that a contract even exists under Arizona law between a student and
a public university, and ASU’s ability to unilaterally amend any alleged contract, the Court
finds that there is no contract between ASU and Plaintiff and grants Defendants’ Motion
as to this claim without prejudice.
4. Breach of the Covenant of Good Faith and Fair Dealing
“Arizona law ‘implies a covenant of good faith and fair dealing in every contract,’
under which ‘neither party will act to impair the right of the other to receive the benefits
which flow from their agreement or contractual relationship.” Ipro Tech LLC v. Sun W.
Mortg. Co., No. CV-17-04015-PHX-DLR, 2019 WL 2106417, at *3 (D. Ariz. Mar. 21,
2019) (quoting Rawlings v. Apodaca, 726 P.2d 565, 569–70 (Ariz. 1986)). Because the
Court finds that there is no contract between Plaintiff and ASU, it holds that there is also
no covenant of good faith and fair dealing.
Accordingly, the Court finds that Plaintiff fails to state a claim for breach of the
covenant of good faith and fair dealing and grants Defendants’ Motion as to this claim
without prejudice.
5. IIED
Under Arizona law, “one who by extreme and outrageous conduct intentionally or
recklessly causes severe emotional distress to another is subject to liability for such
emotional distress, and if bodily harm to the other results from it, for such bodily harm.”
Godbehere v. Phx. Newspapers, Inc., 783 P.2d 781, 785 (Ariz. 1989) (citation modified).
IIED claims have three elements: (1) “the conduct by the defendant must be ‘extreme’ and
‘outrageous’”; (2) “the defendant must either intend to cause emotional distress or
recklessly disregard the near certainty that such distress will result from his conduct”; and
(3) “severe emotional distress must indeed occur as a result of defendant’s conduct.”
Citizen Publ’g Co. v. Miller, 115 P.3d 107, 110 (Ariz. 2005) (quoting Ford v. Revlon, Inc.,
734 P.2d 580, 585 (Ariz. 1987)).
Here, Plaintiff alleges that ASU caused Plaintiff “severe emotional distress” by
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“finding [Plaintiff] responsible for sexual misconduct,” conducting a flawed appeal
process, and “sanctioning John by effectively labeling him as a predatory sexual offender.”
(Doc. 62 at 62.) However, the Court is not convinced this behavior is outrageous and
extreme. Behavior amounts to IIED “where the conduct has been so outrageous in
character, and so extreme in degree, as to go beyond all possible bounds of decency, and
to be regarded as atrocious, and utterly intolerable in a civilized community.” Ford, 734
P.2d at 585 (quoting Restatement (Second) of Torts § 46 (A.L.I. 1965)). At most,
Defendants’ behavior may have been unreasonable and unfair—not beyond all possible
bounds of decency. See Doe v. Brandeis Univ., 177 F. Supp. 3d 561, 617 (D. Mass. 2016)
(dismissing plaintiff’s IIED claim based on a university’s charge “effectively labeling him
as a sexual predator” because it did not “appear to constitute the sort of targeted, deliberate,
and malicious conduct that is required for an IIED claim”).
Moreover, Plaintiff’s allegations only arise to emotional distress, not severe
emotional distress. In Plaintiff’s SAC, he states he is “deeply depressed and anxious, has
trouble sleeping, and has developed physical maladies as a result of ASU and Defendant
[the Board’s] conduct.” (Doc. 62 at 63.) These conclusory statements are insufficient to
establish an IIED claim.
Arizona courts have “uniformly insisted that the emotional distress suffered be
severe.” Midas Muffler Shop v. Ellison, 650 P.2d 496, 500–01 (Ariz. Ct. App. 1982)
(emphasis in original). Courts draw a line between conduct causing emotional distress and
that causing severe emotional distress. Id. at 501 (citing cases giving examples such as
heart attack from nervous exhaustion, fright induced premature birth, writhing in bed in
hysteria, and hospitalization for anxiety). In Midas, the court found that the plaintiff’s
testimony that phone calls “upset her and made her cry, and that she had difficulty sleeping
on several occasions after the calls were made” was not “sufficiently severe to warrant the
imposition of liability for [IIED].” Id. The court explained, “[i]t is only where it is extreme
that the liability arises. Complete emotional tranquility is seldom attainable in this world,
and some degree of transient and trivial emotional distress is a part of the price of living
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among people.” Id. (quoting Restatement (Second) of Torts § 46 cmt. J (A.L.I. 1965)).
The Court finds that Plaintiff’s vague allegations of depression, anxiety, struggle sleeping,
and “physical maladies” do not establish severe emotional distress.
Accordingly, the Court finds that Plaintiff fails to state an IIED claim and grants
Defendants’ Motion as to this claim without prejudice.
6. Punitive Damages
As Defendants concede, Plaintiff may only pursue punitive damages based on his
§ 1983 claim against the Individual Defendants in their personal/individual capacities.
However, Defendants also note—and Plaintiff does not object—that a complainant cannot
pursue punitive damages for a Title IX claim as a matter of law. (Docs. 76 at 27; 79 at 27.)
The Court agrees. See Mercer v. Duke Univ., 401 F.3d 199, 202 (4th Cir. 2005).
Additionally, Plaintiff’s state claims have been dismissed, so any associated “claim for
punitive damages obviously fails as well.” See Papike v. Tambrands Inc., 107 F.3d 737,
744 (9th Cir. 1997).
Accordingly, the Court grants Defendants’ Motion with prejudice only as it relates
to Plaintiff’s claims for punitive damages under Title IX.
B. Timeliness
Finally, Defendants argue that Plaintiff’s federal and state claims regarding ASU’s
handling of his Code of Conduct Complaint against Jane “are time barred by the applicable
statutes of limitations and Arizona’s notice of claim statute.” (Id. at 6.) Defendants also
argue that Plaintiff impermissibly added Defendants Ms. Ojeda and Ms. Russo in his SAC.
(Id. at 7.) Because the Court dismisses Plaintiff’s state claims, any timeliness issue is moot
as to these claims. Thus, the Court only addresses Defendant’s timeliness argument
regarding Plaintiff’s federal claims.
1. Title IX and § 1983
Defendants argue that Plaintiff failed to bring his Title IX and § 1983 claims
regarding his Code of Conduct Complaint within two years of accrual. (Id.) The Court
disagrees.
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“Title IX does not expressly provide any statute of limitations. Because a Title IX
suit is a civil rights action, [courts] borrow the most appropriate state statute of limitations.”
Stanley v. Trs. of Cal. State Univ., 433 F.3d 1129, 1134 (9th Cir. 2006) (citation modified).
The Ninth Circuit holds that the most appropriate statutory period is the forum state’s
personal injury statute of limitations. Id. The same is true for § 1983 claims. Butler v.
Nat’l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014) (“Section 1983 does
not contain its own statute of limitations. Without a federal limitations period, the federal
courts apply the forum state’s statute of limitations for personal injury actions . . . .”
(citation modified)). Therefore, the Court must apply Arizona’s two-year statute of
limitations to Plaintiff’s Code of Conduct Title IX and § 1983 claims. See Pounders v.
Enserch E & C, Inc., 306 P.3d 9, 11 (Ariz. 2013) (citing A.R.S. § 12-542(1)) (explaining
that Arizona “has a statute of limitations, which bars personal injury claims asserted more
than two years after the claim is discoverable”).
While Title IX claims subject to federal tolling rules, see Stanley, 433 F.3d at 1136,
and § 1983 claims are subject to state tolling rules, see Holt v. Orange County, 91 F.4th
1013, 1018 (9th Cir. 2024), the Federal and Arizona rules are nearly identical. Compare
Stanley, 433 F.3d at 1136 (“The touchstone for determining the commencement of the
limitations period is notice: a cause of action generally accrues when a plaintiff knows or
has reason to know of the injury which is the basis of his action.” (citation modified)) with
Satamian v. Great Divide Ins. Co., 545 P.3d 918, 925 (Ariz. 2024) (“The discovery rule
provides that a statute of limitations is tolled until the plaintiff knows or with reasonable
diligence should know the facts underlying the cause.” (citation modified)). Thus, the
Court must determine when Plaintiff knew, or should have known, of his Code of Conduct
allegations.
Defendants first focus on Plaintiff’s Title IX allegations that ASU: denied him “the
opportunity to pursue a Title IX and/or sexual misconduct complaint against Jane”; denied
“him procedural protections owed to him under both Title IX and the Code of Conduct
Procedures; failed “to take any disciplinary action against Jane” related to Plaintiff’s
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complaint; and failed to classify and investigate Jane’s Title IX Complaint against him as
“retaliation.” (Doc. 76 at 5.) Defendants then focus on Plaintiff’s § 1983 allegations that
ASU “treated the complaints filed by Jane and [Plaintiff] differently and disparately”
because of sex. (Id. at 6.) Defendants argue that these claims “accrued in 2021, when
[Plaintiff] knew or had reason to know” of these injuries at the time of the disciplinary
proceedings. (Id. at 6.)
Plaintiff responds that Plaintiff “could not have discovered Defendants’ actions
regarding the disparate treatment in the handling of his complaint compared to Jane’s until
[Plaintiff] received a discovery production in connection with his parallel proceedings” in
state court on April 1, 2025. (Doc. 79 at 4.) In his SAC, Plaintiff alleges that discovery
produced an email where Ms. Ojeda “expressly stated that although Jane’s complaint
against [Plaintiff] originally was opened as a conduct case, like [Plaintiff’s], that case was
closed because all of [Plaintiff’s] reported behavior fell under the Title IX Formal
Greivance Process.” (Doc. 62 at 23.) Thus, Plaintiff explains that, prior to this date, he
was unaware of “Defendant’s handling or disposition of his complaint against Jane.” (Doc.
79 at 4.) The Court is persuaded by this argument.
The gravamen of Plaintiff’s Title IX and § 1983 claims is the differential treatment
between Plaintiff and Jane. Based on Plaintiff’s SAC, it appears that he was not aware of
ASU’s treatment of Jane’s initial conduct complaint until April 2025. This differential
treatment animates Plaintiff’s allegations that he was not afforded an opportunity to bring
a Title IX claim like Jane, and thus not afforded the protections of Title IX like Jane, and
that Defendants showed favorable treatment of Jane’s complaint. Thus, the Court disagrees
with Defendants that Plaintiff’s allegations regarding ASU’s treatment of his and Jane’s
Code of Conduct Complaints were known in 2021.
Accordingly, the Court finds that Plaintiff could not have known of this differential
treatment until April 2025, and thus the new allegations included in Plaintiff’s SAC, which
was filed on June 30, 2025, is not untimely.
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2. Defendants Ms. Ojeda and Ms. Russo
Alternatively, Defendants argue that Plaintiff’s SAC untimely added defendants
Ms. Ojeda and Ms. Russo because, under Rule 15(c)(1)(C), “a newly-added defendant must
have received notice of the action within 90 days of the original complaint.” (Doc. 76 at 7.)
Plaintiff argues that even if the Rule applies, “the amendment relates back to [Plaintiff’s]
original filing” and thus the addition is not untimely. (Doc. 79 at 5.) The Court agrees in
part.
In order for an amended complaint to relate back under Rule 15(c)(1)(C), the
claimant must satisfy a three-prong test:
(1) the basic claim must have arisen out of the conduct set forth in the original
pleading; (2) the party to be brought in must have received such notice that
it will not be prejudiced in maintaining its defense; (3) that party must or
should have known that, but for a mistake concerning identity, the action
would have been brought against it.
Schiavone v. Fortune, 477 U.S. 21, 29 (1986). The notice requirements in prongs three
and four “must have been fulfilled within” the period of time prescribed by Rule 4(m). See
id. Rule 4(m) states a defendant must be served within 90 days after a complaint is filed.
The Court finds that Plaintiff’s allegations relate back to the original complaint.
First, the Court agrees with Defendants that the SAC’s allegations regarding ASU’s
treatment of his and Jane’s Code of Conduct Complaints rise out of the same conduct set
forth in the original pleading. In Plaintiff’s First Amended Complaint (“FAC”), Plaintiff
references Ms. Ojeda’s investigation of Plaintiff’s complaint under the Student Code of
Conduct. (Doc. 32 at 15.) The FAC also states that ASU adjudicated Plaintiff’s complaint
under the Student Code of Conduct. (Id. at 9.) Thus, the Court finds that Plaintiff’s SAC
allegations regarding ASU’s handling of Plaintiff and Jane’s complaints under the Code of
Conduct arises out of the same conduct set forth in the original pleading.
Second, the Court finds that Ms. Ojeda had constructive notice of this suit within
the Rule 4(m) period. “[C]onstructive notice may exist when the new defendant is
represented by the same attorney as the original defendants.” Warden v. Walkup, No.
CV-13-00283-TUC-DCB (BPV) (l), 2018 WL 3084728, at *3 (D. Ariz. June 22, 2018)
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(citation modified). This is known as the “shared attorney” method of imputing
constructive notice on a prospective defendant. See Browning v. Safmarine, Inc., 287
F.R.D. 288, 291 (D.N.J. 2012). “The shared attorney method assumes that where an
originally named party and a party later sought to be added share representation within [90
days] of the filing of a complaint, the shared attorney will likely inform the latter party of
the likelihood that he may be joined in the action.” Id. Defendants do not dispute this
theory of constructive notice. (Doc. 80 at 4.) However, Defendants argue that it is only
applicable if the attorney knew that the additional defendants would be added. (Id.) The
Court agrees. Constructive notice under the shared attorney method is appropriate “so long
as there is some showing that the attorney knew that the additional defendant would be
added to the existing suit.” Warden, 2018 WL 3084728, at *3 (citation modified).
The Court finds the shared attorney method of constructive notice is applicable to
Defendant Ms. Ojeda but not Defendant Ms. Russo. Plaintiff filed his original Complaint
on July 25, 2024. (Doc. 1.) Osborn Maledon appeared as counsel for the Board, Dr. Vogel,
and Ms. Preudhomme in response to the Complaint on August 12, 2024. (Doc. 14.) Osborn
Maledon also represents Ms. Ojeda and Ms. Russo. (Doc. 76.) In his original Complaint,
Plaintiff named Ms. Ojeda twelve times. (Doc. 1 at 13–15.) In the Complaint, Plaintiff
also states that he provided a list of witnesses to Ms. Ojeda but none of his witnesses were
interviewed. (Id.at 13.) Additionally, Defendants attach a transcript of Plaintiff’s
interview with Ms. Ojeda to their Motion. (Doc. 76-1.) Thus, the Court finds that
Defendants’ attorney knew or should have known that Ms. Ojeda would later be named.
See Abdell v. City of New York, 759 F. Supp. 2d 450, 455 (S.D.N.Y. 2010) (“The inquiry
is not . . . whether defense counsel had actual knowledge but whether he knew or should
have known that the additional defendants would be added within the statute of limitations
period.” (citation modified)). However, the Court does not find that Defendants’ counsel
knew or should have known that Ms. Russo would later be named because Plaintiff’s
original Complaint never named Ms. Russo.
Accordingly, the Court finds that Ms. Ojeda was not impermissibly added but Ms.
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Russo was. Thus, the Court grants Defendants’ request to dismiss any claims against Ms.
Russo.
IV. MOTION FOR SUR-REPLY
“Neither Fed. R. Civ. P. 7 nor the local rules of practice for this District provide for
the filing of a sur-reply, and sur-replies are not authorized by any other rules of procedure
absent express prior leave of the Court.” Briggs v. Montgomery, No.
CV-18-02684-PHX-EJM, 2019 WL 13039282, at *2 (D. Ariz. Mar. 19, 2019). Instead,
they are permissible “when a party raises new issues or new evidence in a reply brief.” Id.
(quoting ML Liquidating Tr. v. Mayer Hoffman McCann P.C., No. 2:10-CV-02019-RRB,
2011 WL 10451619, at *1 (D. Ariz. Mar. 11, 2011)). But they are “generally discouraged”
and are permitted only “in the most extraordinary circumstances.” ML Liquidating Tr.,
2011 WL 10451619, at *1.
Here, Plaintiff claims Defendants raised new arguments regarding: (1) Plaintiff’s
access to a report outlining the result of his complaint of sexual assault against Jane; (2) the
nature of the organizations protesting ASU; and (3) that Ms. Ojeda confused the Title IX
procedures with the Code of Conduct procedures with regard to Plaintiff’s breach of
contract and good faith and fair dealing claims. (Doc. 81 at 2.) The Court need not address
these allegations because the Court did not consider this alleged information in issuing this
order. See Provenz v. Miller, 102 F.3d 1478, 1483 (9th Cir. 1996) (“[W]here new evidence
is presented in a reply to a motion for summary judgment, the district court should not
consider the new evidence without giving the non-movant an opportunity to respond.”
(citation modified)). Any evidence and legal issue considered in this order was adequately
briefed by both parties. Accordingly, the Court dismisses Plaintiff’s Motion for Leave to
File a Sur-Reply.
V. CONCLUSION
Accordingly,
IT IS HEREBY ORDERED granting in part Defendant’s Motion to Dismiss
(Doc. 76) Plaintiff’s SAC as follows. The Court dismisses without prejudice the portion
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of Claim II (§ 1983) against the Individual Defendants as it relates to alleged violations of
the Due Process Clause. The Court also dismisses without prejudice Claim III (breach of
contract), Claim IV (breach of the covenant of good faith and fair dealing), and Claim V
(IIED) as asserted against the Board. The Court dismisses with prejudice all claims against
Ms. Russo. The Court dismisses with prejudice any claim for monetary damages from the
Individual Defendants in their official capacities. The Court dismisses with prejudice any
claim for punitive damages as it relates to Plaintiff’s Title IX claim against the Board.
IT IS FURTHER ORDERED denying in part Defendant’s Motion to Dismiss
(Doc. 76) Plaintiff’s SAC as to Claim I (Title IX) against the Board and Claim II (§ 1983)
against the Individual Defendants as it relates to alleged violations of the Equal Protection
Clause.
IT IS FURTHER ORDERED denying Plaintiff’s Motion for Leave to File a
Sur-Reply (Doc. 81).
Dated this 8th day of December, 2025.
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