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Home / Opinion Digests / Constitutional / Constitutional – Due Process – Procedural & Substantive – University Disciplinary Process – Sexual Assault Allegation – ROTC Student – Feres Doctrine

Constitutional – Due Process – Procedural & Substantive – University Disciplinary Process – Sexual Assault Allegation – ROTC Student – Feres Doctrine

Painter v. Doe (Lawyers Weekly No. 004-014-16, 23 pp.) (Max Cogburn Jr., J.) 3:15-cv-00369; W.D.N.C.

Holding: Plaintiff alleges that, as part of a state-university disciplinary process, university defendants narrowly proscribed his inquiries and assisted his accuser. This is a claim of a procedural rather than a substantive due process violation.

The court accepts the recommendations of the magistrate judge. Defendants’ motions to dismiss are granted, except as to plaintiff’s claim of a procedural due process violation.

After a tour of duty in Iraq, plaintiff returned to the defendant-university and became involved in its Reserve Officer Training Corps (ROTC) program. Plaintiff also worked to establish a Pershing Rifles fraternity chapter at the university.

Defendant Doe enrolled in ROTC classes at the university and pledged the fraternity.

Plaintiff alleges that he and Doe became friends, that they engaged in consensual sexual relations, and that – at her boyfriend’s urging – Doe later claimed plaintiff had sexually assaulted her.

After hearings and unsuccessful appeals, plaintiff was disciplined by the university and the ROTC.

The university defendants have not objected to the magistrate judge’s determination that plaintiff has stated a claim for a procedural due process violation.

As to plaintiff’s claim of a substantive due process violation, the fact that government officials at least tried to afford a citizen with notice and an opportunity to be heard – however allegedly bungled and proscribed that process may have been – will in most instances foreclose a substantive due process claim. Allegations that the university defendants narrowly proscribed plaintiff’s inquiries and assisted the accuser during the disciplinary process relate to procedural rather than substantive due process. Plaintiff has not plausibly alleged that the university defendants violated his substantive due process rights.

In support of his gender discrimination claims, plaintiff contends that he was denied due process because he is male. However, plaintiff makes no factual allegations that the university defendants treated him differently than female students similarly situated to him, to wit, students accused by other students of sexual misconduct.

While plaintiff asserts that the university defendants treat males accused of sexual misconduct differently than females accused of committing nonconsensual sexual acts and that such disparate treatment is based on gender bias, plaintiff points to no particular case where he believes such disparate treatment occurred, making this allegation categorically conclusory. Plaintiff has failed to state a claim for gender discrimination under the Equal Protection Clause or Title IX.

The individual university defendants claim qualified immunity. As the metes and bounds of a quasi-judicial student disciplinary proceeding are not set in stone, the court cannot find that it would have been clear to any reasonably objective hearing officer that, in limiting plaintiff’s questioning of witnesses, his giving of his own testimony, and his presentation of evidence, such actions would violate the protections afforded under the Due Process Clause in the context of a school disciplinary proceeding. The court dismisses the claims against the individual university defendants in their individual capacities.

Because the individual university defendants enjoy immunity from suit, plaintiff’s claims for punitive damages against them will also be dismissed.

Plaintiff attempts to allege a fraud claim against defendant Doe. However, the harm for which plaintiff seeks redress is not that he was deceived by Doe’s allegations of rape, but that the university was deceived by Doe’s allegedly false statements. A claim that a person’s false statements deceived a third party is a claim for defamation, which does not morph into a claim for fraud simply because the statute of limitations ran before plaintiff could file his action.

Plaintiff’s assertion of constructive fraud fares no better. His assertion that he and Doe were in a confidential or fiduciary relationship is conclusory and finds no support in law. Short of marriage or other close familial relationship, simply being classmates, friends, or even friends with benefits does not give rise to a confidential or fiduciary relationship upon which a claim of constructive fraud can be based.

Finally, defendant McGinnis was the commanding officer in charge of the university’s ROTC program. He cancelled plaintiff’s participation in a ROTC study-abroad program on or about June 7, 2012, and recommended that Doe go to the police with her allegations. Consequently, plaintiff’s Aug. 12, 2015 complaint was untimely under G.S. § 1-52(2).

Furthermore, the actions complained of arose out of McGinnis’ management of the military and supervision of service members in the Army ROTC unit he commanded at the university. Clearly, the Feres doctrine bars plaintiff’s claims as an ROTC cadet that McGinnis’ acts in his capacity as the commanding officer of the ROTC unit violated plaintiff’s federally protected rights.

Motions granted in part, denied as to plaintiff’s procedural due process claim.

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