Doe v. Loyola University

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF LOUISIANA

JOHN DOE CIVIL ACTION

v. NO. 18-6880

LOYOLA UNIVERSITY SECTION "F"

ORDER AND REASONS

Before the Court are two motions: (1) Loyola University New

Orleans’s motion for summary judgment; and (2) John Doe’s motion

to extend discovery deadlines. For the reasons that follow,

Loyola’s motion is GRANTED, and Doe’s motion is DENIED.

Background

This Title IX lawsuit arises from a former law student’s claim

that he was wrongfully expelled after the university conducted

allegedly insufficient and discriminatory disciplinary proceedings

during which he was twice found responsible for “dating violence”

in violation of the university’s code of conduct.

Loyola University New Orleans publishes a Code of Conduct

establishing expectations of personal conduct; it is available in

writing and on the University’s website.

It is the intention of this Code of Conduct to classify

standards of behavior essential to the University’s

educational mission and community life. The Code is

applicable to all Loyola students; equally it is

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applicable to recognized student organizations and/or

groups of students.

By accepting admission to Loyola University New Orleans,

a student/student organizations accepts its rules and

acknowledges the right of the University to take conduct

action, up to and including suspension or dismissal.

The Code allows any person to submit a complaint against a member

of the Loyola community, regardless of the complainant’s

affiliation with Loyola. The Code expressly distinguishes

Loyola’s student conduct process from judicial processes. The

Code sets forth the student conduct hearing procedures and the due

process available to students under those procedures, including

the right to written notice, a hearing, and to appeal adverse

decisions or sanctions.

According to the Code, a student conduct hearing is an

opportunity for the accused to hear the allegations, enter their

statement in defense, and deny or accept responsibility. The

accused and complainant must submit their questions in advance of

the hearing; those questions are asked by the presiding hearing

officer. The accused and complainant are prohibited from asking

questions directly to another hearing participant. If the

disciplinary decision is dismissal, any appeal taken is reviewed

by the Vice President for Student Affairs and the University

President.

2

In 2015, John Doe enrolled as a part-time night student at

Loyola University Law School in New Orleans. Thereafter,

consecutive complaints by two non-student women with whom Doe had

been dating proceeded through the student conduct process, after

which Doe was found responsible for violations of the Loyola

University New Orleans Code of Conduct; specifically, he was twice

found responsible for “dating violence.” Doe received written

notice of each complaint, he opted for hearings which were

conducted, and he was provided (and he exercised) his right to

appeal. Ultimately, he was dismissed from the University.

The first complaint was lodged by Jane Roe 1 on March 1, 2016.

Jane Roe 1 reported to Loyola that Doe physically attacked her,

hacked her online accounts, and damaged her property. Doe admits

he was informed of the complaint by the University and that he

asked Loyola to ban Jane Roe 1 from campus; it did so. This first

complaint proceeded through an investigative process to a hearing,

resulted in a finding of “responsible” for both “dating violence”

and “conduct unbecoming a Loyola student,” and culminated in

sanctions including mandatory counseling and disciplinary

probation through August 1, 2017.1 As a condition of probation,

the University’s written determination warned Doe that Loyola

1 Doe was found “not responsible” for stalking, computer and

internet policy violation, and property damage.

3

could take more severe disciplinary action, including “immediate

removal from the University” if another incident occurred during

the probationary period.

During this probationary period, a second complaint was

lodged by Jane Roe 2 on March 10, 2017. Jane Roe 2 reported to

Loyola that Doe physically, psychologically, and verbally abused

her, harassed her online, and sexually assaulted her. In

connection with a temporary restraining order petitioned by Jane

Roe 2 and issued by state court process, Doe was arrested for

possessing a firearm in violation of the temporary restraining

order. Meanwhile, the Student Conduct Office proceeded with

investigating the Jane Roe 2 complaint.

John Doe met in person with Loyola University’s then-

Assistant Vice President of Student Affairs Robert Reed to discuss

this second complaint.2 On May 15, 2017, John Doe received an

email Notice of Conduct Hearing letter, which informed him that

the University’s investigation was complete and he was being

charged under the Code with dating violence, sexual assault, sexual

battery, and stalking in the Jane Roe 2 matter. Doe did not

2 John Doe testified that he had recently been arrested by state

authorities for possession of a firearm in violation of a state-

court-issued temporary restraining order petitioned by Jane Roe 2

and therefore he assumed that the second complaint was lodged by

Jane Roe 2.

4

respond to the May 15, 2017 letter. On June 2, 2017, Loyola re-

sent the Notice of Conduct Hearing letter, providing Doe with

additional response time for him to elect how he wished to proceed.

Doe elected to proceed with a University Board of Review hearing.

On June 13, 2017, Doe received a letter informing him of the

hearing date and directing him to the Student Code of Conduct and

Board of Review Disciplinary Procedures. That same day, Doe

received an email containing a Dropbox link containing case

information, materials, and videos. Three days later, Loyola

reminded Doe by email as to his deadline for submission of material

for a Board of Review hearing. At Doe’s request, the deadline for

submission of materials and to provide witness information was

extended to June 21, 2017. By June 23, 2017, Doe still had not

provided contact information for his witnesses; consequently, Doe

was advised that any witnesses he had could not testify in person

at the hearing. Loyola advised Doe to have any witness statements

submitted by June 26, 2017. The statements were submitted.

On June 27, 2017, Doe met with Loyola student conduct officer

Nikolina Camaj to review the Board of Review hearing procedures.

Doe was advised that his character witnesses were added to the

case file and that his parents would be allowed to testify during

the hearing. Doe was also informed that Jane Roe 2 would be

participating in the hearing by telephone because the temporary

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restraining order restricting contact between Roe 2 and Doe was

still in place.

On June 29, 2017, Doe, with counsel present, participated in

the Board of Review hearing. Doe submitted evidence into the

record for the Board’s review. Doe admits that he understood the

Code of Conduct rules, but he noted that he “didn’t agree with

them.” Doe was ultimately found “responsible” for “dating

violence” and “persistent misconduct and conduct unbecoming” and

was dismissed from the University effective July 10, 2017; in

addition to providing Doe with information and deadlines

concerning any appeal he may lodge, the July 10, 2017 Notice of

Determination letter stated:

As a result of the University Board of Review hearing

June 29, 2017, the following recommendations were made

and approved by the Vice President of Student Affairs.

Charges

Dating Violence -- Responsible

Sexual Assault -- Not Responsible

Sexual Battery -- Not Responsible

Persistent Misconduct -- Responsible

Stalking -- Not Responsible

Conduct Unbecoming – Responsible

Sanctions

As allowed by the provisions of the Student Handbook,

the following sanctions are being enforced. Read the

following information carefully, paying close attention

to due dates and penalties.

1. Dismissal – You are hereby dismissed from Loyola

University New Orleans effective July 10, 2017.

Dismissal is the permanent termination of your

student status. You are not allowed on campus. If

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you need to be on campus during the business day

for official business, you must receive advanced

approval from The Office of Student Affairs.

Student Handbook, Section 5: XII.

Additional Sanction Information

The aforementioned sanctions have gone and will remain

in effect if the appeals deadline passes without

submission OR the appeals process has concluded and a

decision letter has been issued.

Rationale

...

The Board’s decision was based on the following:

Dating Violence – there was a preponderance of evidence

that Mr. John Doe abused Ms. Jane Roe 2 both physically

and sexually. This decision was based on her statements,

photos, and evidence submitted to the courts to obtain

the restraining order.

Persistence Misconduct – this is the second offense of

this same type of complaint within the year.

Conduct Unbecoming of a Loyola Student – in addition to

persistence misconduct, he was also arrested which is in

violation of his disciplinary probation.

...

Doe did not open the Notice of Dismissal until July 14, 2017 when

he emailed Ms. Camaj, requesting additional time to appeal. Ms.

Camaj extended the July 18, 2017 appeal deadline to July 21, 2017.

Doe appealed. He argued that the sanction was inappropriate

because he had not been found responsible for sexual violence,

rape, or sexual assault. Consistent with the Code of Conduct’s

requirement that in cases of dismissal, the appeal is to the Vice

President for Student Affairs and then the University President,

then-Vice President of Student Affairs Dr. Cissy Petty and then-

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President of Loyola University Dr. Kevin Wildes, S.J. considered

Doe’s appeal. On July 22, 2017, Loyola denied the appeal and

upheld the determination of the Review Board and sanction of

dismissal effective July 10, 2017.

On July 20, 2018, Doe sued Loyola University New Orleans,

alleging a claim under Title IX of the Education Amendments Act of

1972, 20 U.S.C. § 1681, a civil rights claim under 42 U.S.C. §

1983, and various state law causes of action sounding in tort and

contract.3 Counsel for each party participated in a scheduling

conference to select mutually agreeable deadlines for this case.

On May 23, 2019, the Court issued a scheduling order memorializing

the jury trial date (March 16, 2020) and selecting various

deadlines. For example, the parties agreed, and this Court

ordered, that witness and exhibit lists must be filed by December

26, 20194 and that “[d]epositions for trial use shall be taken and

all discovery shall be completed no later than January 30, 2020.”

This Court’s scheduling order also provides:

Deadlines, cut-off dates, or other limits fixed herein

may only be extended by the Court upon a timely motion

filed in compliance with the Local Rules and upon a

showing of good cause.

3 Doe sued individual defendants, but his claims against them were

dismissed for failure to state a claim.

4 To date, Doe has not submitted his witness or exhibit list.

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In compliance with the scheduling order’s requirement that

pretrial motions must be filed and served in sufficient time to

permit hearing no later than February 5, 2020, the defendant filed

a motion for summary judgment on January 21, 2020 and selected the

February 5, 2020 hearing date. The Local Rules’ deadline for

filing an opposition came and went. On February 6, 2020, the Court

issued an order providing the plaintiff with additional time to

respond to the motion for summary judgment.5 Meanwhile, the

plaintiff filed a motion seeking to compel discovery responses

that he says he needs “in order to effectively depose the Defendant

in this case and prepare for trial[.]” Prepared to turn over the

requested discovery, the defendant moved for entry of a protective

order. On February 19, 2020, Magistrate Judge Douglas granted in

part the plaintiff’s motion to compel “to the extent that the

motion for protective order is granted as unopposed” and ordered

the parties to submit the protective order no later than February

20, 2020, and ordered that “[o]nce this Court has entered the

protective order in the record, Loyola shall produce the documents

to plaintiff no later than seven (7) days from said date.” The

5 The plaintiff ultimately filed its opposition paper one day after

the new deadline ordered by the Court. Plaintiff’s counsel failed

to comply with this Court’s order that counsel must certify in the

record that a copy of its February 6, 2020 order was provided to

his client.

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magistrate judge also denied the plaintiff’s request for fees and

costs “as Loyola’s refusal to produce the documents was

substantially justified by plaintiff’s intransigence.”6 The

defendant filed the joint motion for protective order on February

20, as ordered; the protective order was entered by the magistrate

judge a week later on February 27, 2020.

The Court now considers Loyola’s motion for summary judgment.

I.

A.

Federal Rule of Civil Procedure 56 instructs that summary

judgment is proper if the record discloses no genuine dispute as

to any material fact such that the moving party is entitled to

judgment as a matter of law. No genuine dispute of fact exists if

the record taken as a whole could not lead a rational trier of

6 Notably, the magistrate judge observed that:

[P]laintiff seeks documents from defendant, who is – and

always has been – prepared to produce the documents

subject to a protective order. While plaintiff did not

formally oppose Loyola’s motion for a protective order,

in his motion to compel, he argues that “[t]he

constraints of the protective order proposed by the

Defendants are such that anyone would not be able to

adhere to except staff trained to do so, none of which

are employed by undersigned.” As Loyola points out,

however, the protective order submitted by it is –

essentially – the same order posted on this Court’s

website by another Magistrate Judge in this Court and

which is commonly used by counsel and parties in all

types of lawsuits in this Court.... [B]oth [parties]

agree that there are confidential aspects to the

documents.

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fact to find for the non-moving party. See Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine

dispute of fact exists only "if the evidence is such that a

reasonable jury could return a verdict for the non-moving party."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

The mere argued existence of a factual dispute does not defeat

an otherwise properly supported motion. See id. In this regard,

the non-moving party must do more than simply deny the allegations

raised by the moving party. See Donaghey v. Ocean Drilling &

Exploration Co., 974 F.2d 646, 649 (5th Cir. 1992). Rather, he

must come forward with competent evidence, such as affidavits or

depositions, to buttress his claims. Id. Hearsay evidence and

unsworn documents that cannot be presented in a form that would be

admissible in evidence at trial do not qualify as competent

opposing evidence. Martin v. John W. Stone Oil Distrib., Inc.,

819 F.2d 547, 549 (5th Cir. 1987); Fed. R. Civ. P. 56(c)(2).

"[T]he nonmoving party cannot defeat summary judgment with

conclusory allegations, unsubstantiated assertions, or only a

scintilla of evidence." Hathaway v. Bazany, 507 F.3d 312, 319

(5th Cir. 2007)(internal quotation marks and citation omitted).

Ultimately, "[i]f the evidence is merely colorable . . . or is not

significantly probative," summary judgment is appropriate.

Anderson, 477 U.S. at 249 (citations omitted); King v. Dogan, 31

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F.3d 344, 346 (5th Cir. 1994)(“Unauthenticated documents are

improper as summary judgment evidence.”).

Summary judgment is also proper if the party opposing the

motion fails to establish an essential element of his case. See

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). In deciding

whether a fact issue exists, courts must view the facts and draw

reasonable inferences in the light most favorable to the non-

moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Although

the Court must "resolve factual controversies in favor of the

nonmoving party," it must do so "only where there is an actual

controversy, that is, when both parties have submitted evidence of

contradictory facts." Antoine v. First Student, Inc., 713 F.3d

824, 830 (5th Cir. 2013)(internal quotation marks and citation

omitted).

B.

The Court may deny summary judgment and extend discovery if

the party opposing summary judgment shows by affidavit or

declaration that, for specified reasons, it cannot present facts

essential to justify its opposition. Jacked Up, L.L.C. v. Sara

Lee Corp., 854 F.3d 797, 816 (5th Cir. 2017)(citing Fed. R. Civ.

P. 56(d)). Rule 56(d) motions are routinely granted if the party

filing the motion demonstrates how additional discovery will

create a genuine issue of material fact and if the party has

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diligently pursued discovery. See id. (citing Smith v. Reg’l

Transit Auth., 827 F.3d 412, 422-23 (5th Cir. 2016) and McKay v.

Novartis Pharm. Corp., 751 F.3d 694, 700 (5th Cir. 2014)). The

Rule 56(d) movant “may not simply rely on vague assertions that

additional discovery will produce needed, but unspecified facts.”

Am. Family Life Assur. Co. of Columbus v. Biles, 714 F.3d 887, 894

(5th Cir. 2013)(citation omitted). Rather, the party seeking

additional time and discovery to oppose summary judgment “must

‘set forth a plausible basis for believing that specified facts,

susceptible of collection within a reasonable time frame, probably

exist and indicate how the emergent facts, if adduced, will

influence the outcome of the pending summary judgment motion.’”

Jacked Up, L.L.C., 854 F.3d at 816 (citation omitted).

C.

Local Rule 56.1 provides that “[e]very motion for summary

judgment must be accompanied by a separate and concise statement

of the material facts which the moving party contends present no

genuine issue.” Local Rule 56.2 provides:

Any opposition to a motion for summary judgment must

include a separate and concise statement of the material

facts which the opponent contends present a genuine

issue. All material facts in the moving party’s

statement will be deemed admitted, for purposes of the

motion, unless controverted in the opponent’s statement.

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II.

A.

First, the Court considers a threshold issue of whether

summary judgment is premature. The plaintiff submits that he

should be afforded more time for discovery. The defendant counters

that the plaintiff has failed to show good cause to excuse his

failure to timely pursue discovery. The Court agrees. Because

the defendant filed its motion for summary judgment at the last

possible time permitted by the scheduling order and the plaintiff

failed to diligently pursue discovery, summary judgment should not

be delayed. What’s more, the plaintiff has failed to submit any

sworn statement specifying how adducing certain facts will

influence the outcome of Loyola’s motion for summary judgment.

The plaintiff moves to extend the discovery cutoff, which

expired on January 30, 2020. He fails to show good cause.

Curiously, the plaintiff suggests that discovery has only recently

begun in this case. In fact, Doe filed this lawsuit on July 20,

2018, a scheduling order issued on May 23, 2019, and Loyola filed

its first motion to compel discovery responses on July 16, 2019

(the motion was ultimately granted as unopposed). Whether the

plaintiff has chosen to participate or not, discovery has been

ongoing for at least eight (if not 17) months. The record shows

that the plaintiff himself failed to diligently pursue discovery,

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whereas Loyola has continued to cooperate and disclose information

belatedly sought by the plaintiff, in spite of the lapse of the

discovery deadline.7 The plaintiff’s motion to extend the

discovery deadline fails for lack of good cause.

Doe’s inability to show that he diligently pursued discovery

likewise dooms his Rule 56(d) motion for additional discovery and

a continuance. Not only does the plaintiff fail to demonstrate

how he diligently pursued discovery (indeed, the record is to the

contrary), but he also fails to submit an affidavit in support of

the motion or explain how additional discovery will create a

genuine issue of material fact for trial.8 The plaintiff’s motion

to extend the discovery deadline must be denied. And insofar as he

implicitly requests an extension of time to oppose the motion for

summary judgment, the request is denied for failure to comply with

Rule 56(d).

7 Instead of attempting to show good cause to excuse his belated

attempts to obtain discovery, Doe casts aspersions that are belied

by the record: he submits that Loyola has “purposely tried to run

out the clock and force the Plaintiff into signing a Protective

Order that is so confining, that Plaintiff’s counsel has no other

choice but refusing it” and he submits that “Plaintiff’s counsel

believes that the protective order was deliberately written so

constrictive as to ensure failure to comply resulting in the

Plaintiff being found in contempt of court.” His arguments proved

to be false theater and were rejected by the magistrate judge.

See Order dtd. 2/19/20.

8 Even having ostensibly obtained the information he belatedly

sought, the plaintiff has not supplemented his opposition papers

or the summary judgment record.

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B.

Second, the Court takes up the issue of whether the factual

assertions contained in the defendant’s statement of undisputed

material facts should be deemed admitted. The defendant contends

that the plaintiff failed to properly controvert its statement of

undisputed material facts in three ways: first, the plaintiff

failed to address certain uncontested facts (including numbers 1,

3, 5, 7, 11-17, 19-20, 22-26, and 28-31); second, the plaintiff

failed to controvert certain facts, including his employment

history (#2), multiple arrests (#4), that Loyola’s code of conduct

prohibits direct questioning of each other by the complainant and

the accused (#9), the procedure set forth in the code for appeals

in dismissal cases (#10), whether he responded to the May 15, 2017

letter (#18), and that he received a Dropbox link (#21); and third,

the plaintiff suggests that some facts are disputed but fails to

acknowledge uncontroverted documents in the record, including that

the Code does not limit its jurisdiction to complaints brought by

members of the Loyola community and explicitly sets forth the

student conduct hearing procedures and due process requirements

(#6 and #8, see Rec.Doc. 33-9), the date of the plaintiff’s

dismissal (#27, see Rec.Doc. 33-3), and the date the plaintiff

filed his lawsuit (#32, see Rec.Doc. 1). The Court agrees.

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Indeed, the plaintiff candidly admits he cannot controvert these

facts.9

Because the plaintiff failed to controvert any of these facts

(numbers 1 through 32, which is the entire statement of undisputed

material facts), Local Rule 56.2 requires that they be deemed

admitted.

III.

Loyola first seeks summary judgment in its favor dismissing

the plaintiff’s Title IX, Section 1983, and state tort law claims

on prescription grounds. In his tardy opposition, the plaintiff

fails to mention the statute of limitations, which dooms all but

one of his claims.10

Neither Title IX nor Section 1983 contain an express

limitations period. Both sorts of claims are governed by the state

statutes on prescription for personal injury actions. See King-

White v. Humble Indep. Sch. Dist., 803 F.3d 754, 759 (5th Cir.

2015). In Louisiana, delictual actions are subject to a one-year

9 The plaintiff admits: “Defendant’s summary judgment motion

contains a lengthy ‘Statement of Undisputed Fact,’ which is based

upon declarations and a number of attached exhibits. Without the

time and the opportunity for discovery, Plaintiff cannot contest

these facts.” As discussed above, the plaintiff has failed to

demonstrate that he lacked the opportunity or time to participate

in discovery.

10 The one claim that is not subject to a one-year prescriptive

period is the plaintiff’s breach of contract claim, which is

addressed separately.

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prescriptive period, which runs from the day the injury is

sustained. La. Civ. Code art. 3492. Thus, Doe’s Title IX, Section

1983, and tort claims are subject to a one-year prescriptive

period.

The operative date from which the limitations period runs is

the day injury or damage is sustained, La. Civ. Code art. 3492,

or, more precisely here, “the date of the notice of the adverse

action.” See Hartz v. Admr’s of the Tulane Educ. Fund, 275

Fed.Appx. 281, 287 (5th Cir. 2008)(regardless of the pendency of

grievance procedures, charging period began to run when plaintiff

received notice that she was denied tenure). The focus is on when

the plaintiff is aware of the injury: “[a] claim accrues and the

limitations period begins to run the moment the plaintiff becomes

aware that he has suffered an injury or has sufficient information

to know that he has been injured.” King-White, 803 F.3d at 762

(internal citations omitted). This is so notwithstanding the

availability of grievance procedures such as an opportunity to

appeal the decision causing the injury; that is, claims must be

filed within the prescriptive period from the date of notice of

the original decision. See Delaware State College v. Ricks, 449

U.S. 250, 256 (1980)(“the pendency of a grievance, or some other

method of collateral review of an employment decision, does not

toll the running of the limitations period. The existence of

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careful procedures to assure fairness in the tenure decision should

not obscure the principle that limitations periods normally

commence when the employer’s decision is made.”); Sanders v. Univ.

of Tex. Pan Am., 776 Fed.Appx. 835, 837 (5th Cir. 2019)(quoting

Ricks, 449 U.S. at 258)(internal alterations omitted)).

In other words, if the plaintiff challenges a decision, the

clock on his claim starts to run when the decision is made and

communicated to the injured party. This principle applies equally

to student dismissal decisions. See, e.g., Tolliver v. Prairie

View A&M Univ., No. 18-1192, 2018 WL 4701571, at *2-3 (S.D. Tex.

Oct. 1, 2018)(granting defendants’ motion to dismiss Title IX, §

1983, and state law tort claims as time-barred and finding that

expelled student’s request to overturn expulsion did not delay the

accrual of his claims arising from the expulsion); Oirya v. Auburn

Univ., No. 17-681, 2019 WL 4876705, at *11-15 (M.D. Ala. Oct. 2,

2019)(dismissing Title IX claim as time-barred, determining that

statute of limitations began to run on the date the plaintiff was

informed that he was dismissed from the university, and rejecting

the plaintiff’s argument that the university’s willingness to

review its decision and allow him to reapply implicates the

continuing tort doctrine), appeal filed November 4, 2019; Cordova

v. Univ. of Notre Dame Du Lac, 936 F. Supp. 2d 1003, 1011 (N.D.

Ind. 2013)(granting university’s motion to dismiss student’s

19

claims challenging dismissal from university, finding that the

claims accrued when the plaintiff received notice of expulsion,

notwithstanding the plaintiff’s appeal of that decision).

Here, the Board of Review issued its “dismissal”

determination on July 10, 2017. It is not disputed that the

limitations period commenced no later than July 14, 2017, when the

plaintiff unequivocally had notice of his dismissal.11 Doe filed

this lawsuit more than one year later, on July 20, 2018. Doe’s

Title IX, § 1983, and each of his state-law tort claims are

therefore time-barred.12

IV.

A.

Loyola next submits that it is entitled to summary judgment

dismissing each of the plaintiff’s claims on the merits.

“It is not the role of the federal courts to set aside

decisions of school administrators which the court may view as

lacking in wisdom or compassion.” Plummer v. Univ. of Houston,

860 F.3d 767, 772 (5th Cir. 2017)(quoting Wood v. Strickland, 420

11 The record shows that Doe received an email with a link to the

determination letter on July 11, 2017, but it was three days later

on July 14, 2017 when the plaintiff first responded to the email

and confirmed that he opened the determination letter.

12 Doe cites no law or fact that would alter this outcome. In

fact, he does not address Loyola’s statute of limitations defense

at all.

20

U.S. 308, 326 (1975)). The judiciary is tasked not with

determining whether a university made the correct decision in

rendering discipline in a misconduct case, but, rather, to ensure

that the university relied on “fundamentally fair procedures to

determine whether the misconduct has occurred.” Id. (quoting Goss

v. Lopez, 419 U.S. 565, 574 (1975)).

To be sure, the Court need not consider the merits of Doe’s

prescribed claims. Nevertheless, in the interest of completeness,

the Court observes that the plaintiff fails to mention six of his

claims in his opposition papers: detrimental reliance, negligent

infliction of emotional distress, gross negligence, and claims

under Title IX for selective enforcement, erroneous outcome, and

deliberate indifference violations. In addition to being

prescribed, Loyola’s well supported motion including its statement

of undisputed facts (which is deemed admitted), coupled with the

plaintiff’s failure to invoke any case literature or to submit or

identify any evidence in the record to support his claims,

demonstrates that Loyola is entitled to judgment as a matter of

law dismissing these claims.

B.

The plaintiff briefly addresses two claims in his opposition

paper: (1) Loyola violated due process owed under 42 U.S.C. § 1983;

21

and (2) Loyola breached a contract. Neither claim withstands

Loyola’s motion for summary judgment.

1. 42 U.S.C. § 1983

The Court has already determined that the plaintiff’s § 1983

claim is prescribed. Even assuming it were viable, summary

judgment in favor of Loyola is warranted because the plaintiff has

failed to submit any evidence in support of an essential element

of his claim.

Loyola is a private, non-profit corporation not clothed with

state action and does not act under the color of state law. Boutin

v. Loyola Univ., 506 F.2d 20, 21 (5th Cir. 1975)(per curiam).

Because Loyola is not a state actor nor is there any evidence that

it was engaged in state action in disciplining Doe, the plaintiff’s

§ 1983 claim must be dismissed on summary judgment for the

additional reason that the plaintiff has not proved the essential

state-action element of his § 1983 claim.

2. Breach of Contract

Finally, Loyola seeks summary relief dismissing the

plaintiff’s breach of contract claim. Loyola submits that Doe’s

breach of contract claim, however characterized,13 targets the

13 Loyola characterizes Doe’s breach of contract claim as a laundry

list of allegations, including Loyola’s alleged failure to have a

fair and impartial disciplinary process, its failure to conduct an

unbiased investigation, its failure to complete the investigation

22

content of the Code of Conduct and is belied by the plaintiff’s

own testimony. The plaintiff submits that he and Loyola entered

into a contract in which he paid Loyola money for his education

and, in return, Loyola contracted to provide him with access to

its student life program in accordance with the 2015-2016 student

handbook. He invokes no substantive law, nor does he single out

any evidence to support a breach of contract cause of action.

The plaintiff invokes no law or evidence to support his claim

that there was a contract, that Loyola breached the contract, or

that the process afforded under the terms of Loyola’s Code of

Conduct was not provided to him. By failing to identify a specific

contractual promise that Loyola failed to honor, the plaintiff’s

conclusory submission fails to satisfy his burden of proof or

identify any genuine factual controversy for trial.

A private university has “broad discretion in determining

appropriate sanctions for violations of its policies.” Doe v.

Trustees of Boston College, 942 F.3d 527, 534-35 (1st Cir. 2019).

Insofar as the relationship between student and private university

within 60 days from the complaint, its failure to provide notice

of charges, its denial of meaningful right to counsel, its failure

to provide opportunity for confrontation and cross-examination,

its failure to meaningfully investigate or weigh evidence, its

failure to provide unbiased and trained investigators and

decisionmakers, and its failure to provide meaningful appellate

review.

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is contractual in nature, courts recognize that the university’s

regulations may become part of the contract. See Shafiq v. Ochsner

Health Sys., No. 18-8666, 2018 WL 1199755 (E.D. La. Mar. 13,

2019)(Africk, J.)(citing Guidry v. Our Lady of the Lake Nurse

Anesthesia Program, 170 So. 3d 209, 213-14 (La. App. 1st Cir.

01/29/14)). To state a breach of contract claim based on

university regulations, “the plaintiff must do more than merely

allege that a promise was inadequately performed; plaintiff must

point to an identifiable contractual promise that the defendant

failed to honor.” Id. at *10-11. The Court then considers whether

the university made an objective good faith effort to perform its

contractual promise. Id. at *11. When reviewing a university’s

decision to dismiss a student, the Court should intervene only if

an institution exercises its discretion in an “arbitrary or

irrational fashion.” Guidry, 170 So. 3d at 215; see also Sirpal

v. Univ. of Miami, 509 Fed.Apx. 924 (11th Cir. 2013)(applying

Florida contract law and holding that a “court will not interfere

with a private university’s enforcement of its regulations unless

the university has acted arbitrarily and capriciously, in

violation of a constitution or statute, or for fraudulent

purposes.”).

Doe testified that Loyola’s Code of Student Conduct formed a

contract with him and acknowledged that, as a student, he had to

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follow the rules “to continue being a student.” He stated that he

disagreed with the rules.14 Nevertheless, he admitted that dating

violence, of which he was twice found “responsible,” would not be

condoned by Loyola, violated the conduct policy, and would lead to

disciplinary sanctions. Doe does not debate that he had an

opportunity to be heard after an investigation and during a

hearing. And he fails to identify any Code provision that Loyola

disregarded in administering student discipline. Doe simply

disagrees with the outcome of his disciplinary proceeding.

Simply put, assuming that the student Code is part of a

contract between Doe and Loyola, the plaintiff has failed to

identify any breach. He fails to submit any evidence (or support

in the Code) indicating that he had a contractual right not to be

dismissed from Loyola. He fails to identify a specific contractual

promise that Loyola failed to honor, and he fails to offer evidence

indicating that Loyola acted arbitrarily or deviated from its own

Code (the “contract”). He fails to offer evidence that would

create factual disputes in the record, which shows that he was

14 For example, Loyola’s Code allows any person to submit a

complaint against a member of the Loyola community, regardless of

the complainant’s affiliation with Loyola. Doe takes issue with

whether a university should allow non-students (Jane Roe 1 and

Jane Roe 2) to lodge complaints about a student’s (John Doe’s)

conduct. Doe’s subjective disagreement with university policy

advances nothing on summary judgment.

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dismissed from the University after being twice found responsible

for dating violence, following an investigation and a hearing

conducted in compliance with the Code of Conduct. The material

that the plaintiff attaches to his opposition paper appears to

simply confirm that he and the female complainants had domestic

disputes; that Doe communicated with university officials by email

in connection with the student disciplinary process and his

requests for extensions of time were generally granted and his

requests for information were answered; that Doe was informed on

June 13, 2017 that he would need to utilize a Dropbox link to

access his case documents prior to the hearing; and that Doe first

informed Loyola that he was unable to access the Dropbox link on

August 11, 2017 (over one month after the hearing and two weeks

after he submitted his appeal). These materials create no triable

issue regarding his breach of contract cause of action. Having

failed to identify any triable issue regarding whether Loyola

breached a contract or violated its own student conduct policy or

otherwise acted arbitrarily in dismissing Doe from the university,

Doe’s breach of contract claim fails to withstand Loyola’s motion

for summary judgment.

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kkk

Accordingly, for the foregoing reasons, IT IS ORDERED: that

the plaintiff’s motion to extend discovery deadlines or for

additional time to oppose summary judgment is hereby DENIED, and

the defendant’s motion for summary judgment is GRANTED. The

plaintiff’s claims are hereby dismissed with prejudice.

New Orleans, Louisiana, March 3, 2020

Au . C. ELDMAN

UNITED STATHS DISTRICT JUDGE

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