Herman v. Ohio University

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

Tess Herman,

Plaintiff, Case No. 2:19-cv-201

JUDGE SARAH D. MORRISON

v. Magistrate Judge Vascura

Ohio University, et al.,

Defendants.

OPINION & ORDER

The Court considers this matter pursuant to a Motion to Dismiss filed by Third-Party

Defendants M. Duane Nellis, Chaden Djalali, G. Antonio Anaya and Sara Trower (“Individual

Defendants”) (ECF No. 33) pursuant to Fed. Rs. Civ. P. 12(b)(1) and 12(b)(6) as to

Defendant/Third-Party Plaintiff Yusuf Kalyango’s Third Party Complaint against them.1 Being

fully advised, the Court GRANTS the motion.

I. BACKGROUND

In adjudicating this Motion to Dismiss, the Court accepts as true all well-pleaded factual

allegations from the First Amended Complaint. Ashcroft v. Iqbal, 556 U.S. 662, 678-9 (2009).

Ohio University (“University”) is a public educational institution receiving federal

funding. Nellis is the University’s President. Djalali is the University’s Provost. Anaya is the

1 Kalyango’s relevant pleading is styled as an Amended Cross-Claim. As the Individual

Defendants correctly point out, however, none of them were named as parties in Plaintiff Tess

Herman’s Original or First Amended Complaint. Technically, then, Kalyango’s pleading is

improper under Fed. R. Civ. P. 13. The Individual Defendants have agreed to proceed as if the

cross-claims were both properly lodged pursuant to Fed. R. Civ. P. 14 and properly served under

Fed. Rs. Civ. P. 4 and 5. The Court will therefore do the same.

University’s Civil Rights Investigator. At all relevant times, Trower was the University’s

Executive Director and Title IX coordinator.

At all relevant times, Defendant Dr. Yusuf Kalyango was the University’s Director of the

International Institute of Journalism (“IIJ”). In that role, Dr. Kalyango was in charge of the

Young African Leaders Initiative (“YALI”) and the Study of the United States Institute

(“SUSI”). At all pertinent times, Plaintiff Tess Herman was a graduate student at the University

working towards her Master of Science in Journalism and her Master of Science of

Environmental Studies. She also worked as Kalyango’s YALI program assistant.

Herman’s First Amended Complaint asserts sexual harassment, sexual discrimination and

retaliation claims against Kalyango based upon e-mails, text messages and events that transpired

before, during and immediately after the two went to Africa for a YALI trip. Ultimately, Herman

lodged a formal complaint about Kalyango’s conduct towards her with the University’s Office of

Equity and Civil Rights Compliance (“ECRC”) in July 2017. Anaya investigated her complaint

(“Investigation”) and produced an August 24, 2018 Memorandum of Findings (“Memorandum”).

The Memorandum concluded that Herman’s allegations against Kalyango for sexual harassment

and hostile work environment were substantiated. (First Am. Cmplt. Ex. A.)2 The Memorandum

was submitted to the University’s Chair of the Journalism Department and the Dean of the

2 The Court “may consider exhibits attached to the complaint, public records, [and] items

appearing in the record of the case . . . so long as they are referred to in the complaint and are

central to the claims contained therein, without converting the motion to one for summary

judgment." Gavitt v. Born, 835 F.3d 623, 640 (6th Cir. 2016) (citing Kreipke v. Wayne State

Univ., 807 F.3d 768, 774 (6th Cir. 2015)). The Memorandum is attached to the First Amended

Complaint, so the Court does not convert the motion to one for summary judgment.

College of Communication “for consideration of possible disciplinary action . . . .” Id. at Ex. A p.

35.

Djalali reviewed the Memorandum and then initiated the University Professional Ethics

Committee (“UPEC”) process. The University denied Kalyango’s request that members of the

committee consist of “diverse professors.” (ECF No. 19 ¶ 55.) The UPEC confirmed that the

Memorandum was an appropriate basis for the University’s journalism school to commence de-

tenuring and termination proceedings. Djalali supported that conclusion and forwarded the

UPEC’s report to the University’s journalism school for additional consideration. Kalyango

appealed Djalali’s decision to Nellis.

Presently, Kalyango is suspended from teaching with pay. The de-tenuring process is not

complete.

Third-Party Counts Two through Seven assert that the Individual Defendants and the two

Doe Defendants—one University human resources employee and one University employee

whom advised students relating to securing communications—violated his due process rights.

The Individual Defendants now move to dismiss each of those claims under Fed. Rs. Civ. P.

12(b)(1) and 12(b)(6).

II. STANDARD OF REVIEW

Before a court may determine whether a plaintiff has failed to state a claim upon which

relief may be granted, it must first decide whether it has subject matter jurisdiction. Mitchell v.

BMI Fed. Credit Union, 374 F. Supp. 3d 664, 666-67 (S.D. Ohio 2019) (citation omitted). Rule

12(b)(1) provides that the defendant may file a motion to dismiss based on a “lack of jurisdiction

over the subject matter.” Fed. R. Civ. P. 12(b)(1). The standard of review of a 12(b)(1) motion to

dismiss for lack of subject matter jurisdiction depends on whether the defendant makes a facial

or factual challenge to subject matter jurisdiction. Wayside Church v. Van Buren County, 847

F.3d 812, 816-17 (6th Cir. 2017). Only the former is at issue here. A facial attack “questions

merely the sufficiency of the pleading.” Gentek Bldg Prods., Inc. v. Sherwin-Williams Co., 491

F.3d 320, 330 (6th Cir. 2007) (citing Ohio Nat'l Life Ins. Co. v. United States, 922 F.2d 320, 325

(6th Cir. 1990)), and requires the district court to “take[] the allegations in the complaint as true.”

Id. The plaintiff has the burden of proving jurisdiction when subject matter jurisdiction is

challenged. Rogers v. Stratton Indus., 798 F.2d 913, 915 (6th Cir. 1986).

A claim survives a motion to dismiss pursuant to Rule 12(b)(6) if it “contain[s] sufficient

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation omitted). “The plausibility standard is not

akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant

has acted unlawfully.” Id. A complaint’s “[f]actual allegations must be enough to raise a right

to relief above the speculative level, on the assumption that all of the complaint’s allegations are

true.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–56 (2007) (internal citations omitted).

A court must also “construe the complaint in the light most favorable to the plaintiff.”

Inge v. Rock Fin. Corp., 281 F.3d 613, 619 (6th Cir. 2002). In doing so, however, a plaintiff

must provide “more than labels and conclusions, and a formulaic recitation of the elements of a

cause of action will not do.” Twombly, 550 U.S. at 555; see also Iqbal, 556 U.S. at 678

(“Threadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.”); see also Ass’n of Cleveland Fire Fighters v. City of Cleveland,

Ohio, 502 F.3d 545, 548 (6th Cir. 2007). “[A] naked assertion . . . gets the complaint close to

stating a claim, but without some further factual enhancement it stops short of the line between

possibility and plausibility . . . .” Twombly, 550 U.S. at 557. Thus, “something beyond the mere

possibility of [relief] must be alleged, lest a plaintiff with a largely groundless claim be allowed

to take up the time of a number of other people, with the right to do so representing an in

terrorem increment of the settlement value.” Id. at 557–58 (internal citations omitted).

III. ANALYSIS

The Individual Defendants argue counts two through seven are subject to dismissal

because there is no direct right of action under the Constitution for a due process violation. (ECF

No. 33 at 4.) Kalyango’s opposition only addresses Counts Two and Three against Trower and

Anaya, while leaving Counts Four though Seven against Nellis, Djali and the Doe Defendants

unaddressed. The Court reviews the claims out of order for ease of analysis.

A. Counts Four Through Seven

These counts apply to Djalali, Nellis and the Doe Defendants. Specifically, Kalyango

alleges that those defendants violated Kalyango’s due process rights during the de-tenuring

process. The Defendants at issue argue that dismissal of these claims is proper due to insufficient

pleading. Alternatively, they contend dismissal is required due to ripeness concerns. Kalyango

does not address the Individual Defendants’ arguments as to pleading, but he does oppose

dismissal on ripeness grounds.

Counts Four Through Seven allege only that the Defendants at issue violated the due

process clause. Those claims do not mention § 1983. There is no direct right of action under the

Constitution. Instead, §1983 is the “exclusive remedy for constitutional violations.” (ECF No. 33

at 4) (quoting Foster v. Michigan, 573 Fed. Appx. 377, 391 (6th Cir. 2014) (“To the extent that

Appellants attempt to assert direct constitutional claims, they fail; we have long held that § 1983

provides the exclusive remedy for constitutional violations.”)). Kalyango does not attempt to

defend these counts. For these reasons, the Court DISMISSES Counts Four through Seven as a

matter of law under Fed. R. Civ. P. 12(b)(6).

Assuming, arguendo, that Kalyango did properly plead § 1983 as the vehicle for these

counts, the Individual Defendants argue dismissal is still proper because those claims are not ripe

because the de-tenuring process is not complete. Kalyango states that his due process claims as

to the de-tenuring procedure are ripe for two reasons. First, because “without the intervention of

this Court Dr. Kalyango will certainly lose his tenure position with Ohio University” such that he

“seeks injunctive relief to curtail the defendants’ ongoing due process violations.” (ECF No. 39.)

Second, he alleges the de-tenuring process has already caused him damage in the form of the lost

IIJ directorship salary and grants. (ECF No. 19 ¶ ¶ 61-64.)

Kalyango seeks monetary and injunctive relief for these claims. As to the later, he seeks

an order “enjoining [the University] from any further proceedings under the current de-tenuring

protocol, reinstating [him] to his full-time duties as a tenured professor; and enjoining Ohio

University, its representatives, officers, agents and employees from retaliating in any form or

fashion against [him] for having filed a charge of discrimination, filing this lawsuit or for having

pursued his full remedies.” (ECF No. 19 at Wherefore ¶ 2.)

Ripeness is a threshold question. “The ripeness doctrine serves to avoid premature

adjudication of legal questions and to prevent courts from entangling themselves in abstract

debates that may turn out differently in different settings.” Warshak v. United States, 532 F.3d

521, 525 (6th Cir. 2008) (en banc) (quotation omitted). It is a “question of timing” that “becomes

an issue when a case is anchored in future events that may not occur as anticipated, or at all.”

NRA of Am. v. Magaw, 132 F.3d 272, 284 (6th Cir. 1997). A claim is not ripe for judicial review

when “there is no certainty whether the challenged conduct will occur in the future.” Warshak,

532 F.3d at 526 (quotation omitted). In addition, a constitutional claim is not “fit” for judicial

consideration when it presents “difficult legal questions before they arise and before the courts

know how they will arise.” Id. In contrast:

[a] claim is ripe where (1) ‘there is a likelihood that the harm

alleged by the plaintiff will come to pass; (2) the factual record is

sufficiently developed to produce a fair adjudication of the merits

of the parties' respective claims; and (3) hardship to the parties

exists if judicial relief is denied at this stage in the proceedings.

Morreim v. Univ. of Tenn., No. 12-2891-STA-dkv, 2013 U.S. Dist. LEXIS 149436, at *33-36

(W.D. Tenn. Oct. 16, 2013) (quoting Berry v. Schmitt, 688 F.3d 290, 298 (6th Cir. 2012)).

With those principles in mind, the Court determines that Kalyango’s § 1983 tenure due

process claims are not ripe. He admits that the de-tenuring process has begun, but is not yet

completed. Kalyango further acknowledges that he remains a tenured professor receiving his full

salary, albeit under suspension of his teaching duties. In effect, he seeks relief from an outcome

yet to occur—he may be de-tenured. And, he does so while presenting “difficult legal questions”

about whether the de-tenuring process will violate the Due Process and Equal Protection

Clauses; such questions typically involve “a fact intensive and searching legal analysis.”

Morreim, No. 12-2891-STA-dkv, 2013 U.S. Dist. LEXIS 149436, at *37 (W.D. Tenn. Oct. 16,

2013).

Accordingly, the Court GRANTS the Individual Defendants’ Motion to Dismiss Counts

Four through Seven under Fed. R. Civ. P. 12(b)(1). This dismissal is without prejudice.

B. Counts Two and Three

Counts Two and Three assert Trower and Anaya violated the Due Process Clause while

acting under color of law during the Investigation pursuant to 42 U.S.C. § 1983. (ECF No. 19 ¶ ¶

85-101.) Trower and Anaya admit that §1983 is the “exclusive remedy for constitutional

violations.” (ECF No. 33 at 4) (quoting Foster v. Michigan, 573 Fed. Appx. 377, 391 (6th Cir.

2014) (“To the extent that Appellants attempt to assert direct constitutional claims, they fail; we

have long held that § 1983 provides the exclusive remedy for constitutional violations.”)).

Hence, Kalyango, by incorporating § 1983 into these counts, avoids dismissal of Counts Two

and Three on this ground. This portion of the Motion to Dismiss is DENIED.

The Court now proceeds to a substantive review of the remaining claims. In Count Two,

Kalyango alleges Trower violated his due process rights by telling Herman to resign from YALI

“for purposes of setting up a false title IX claim” against him. (ECF No. 19 ¶ 87.) In Count

Three, Kalyango asserts Anaya violated Kalyango’s due process rights by taking too long to

complete the Memorandum and by failing to take notes during his investigation. (ECF No. 19 ¶ ¶

96-98.) Trower and Anaya urge the Court to dismiss these claims on Eleventh Amendment

immunity and qualified immunity grounds. (ECF No. 33 at 5.) Kalyango responds that the

claims, which are brought against Trower and Anaya in their personal and official capacities, are

not subject to dismissal based on immunity at this early stage. (ECF No. 39 at 12.) After due

consideration, the Court finds Trower’s and Anaya’s arguments are persuasive.

1. Official Capacity – Eleventh Amendment

The Eleventh Amendment states that “[t]he judicial power of the United States shall not

be construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another State, or by Citizens of Subjects of a Foreign State.” U.S.

Const. amend. XI. As to the scope of Eleventh Amendment, the Sixth Circuit directs:

This immunity is far reaching. It bars all suits, whether for

injunctive, declaratory or monetary relief, against the state and its

departments, by citizens of another state, foreigners or its own

citizens. The amendment also bars suits for monetary relief against

state officials sued in their official capacity.

Thiokol Corp. v. Dep't of Treas., 987 F.2d 376, 381 (6th Cir. 1993) (internal citations omitted).

the Eleventh Amendment further “bars federal jurisdiction over suits against state officials when

the relief sought is retrospective or compensatory in nature . . . .” MacDonald v. Vill. of

Northport, 164 F.3d 964, 971 (6th Cir. 1999).

Ohio University is a public educational institution located in Ohio. It therefore qualifies

as an arm of the state. Phi Kappa Tau Chptr. House Ass'n of Miami Univ. v. Miami Univ., No.

1:12-cv-657, 2013 U.S. Dist. LEXIS 15030, at *12 (S.D. Ohio Feb. 4, 2013). Accordingly, to the

extent Kalyango sues Trower and Anaya in their official capacities for money damages or

retroactive relief, those claims are barred. This is so because “a suit against a state official in his

or her official capacity is not a suit against the official but rather is a suit against the official's

office. As such, it is no different from a suit against the State itself.” Will v. Michigan Dep't of

State Police, 491 U.S. 58, 71 (1989). Consequently, the Court DISMISSES Kalyango’s official

capacity § 1983 due process claims against Trower and Anaya without prejudice under Fed. R.

Civ. P. 12(b)(1) and 12(b)(6).

But, state officials may still be sued for injunctive relief because “‘official capacity’

actions for prospective relief are not treated as actions against the State.” Id. at 71 n.10. Hence,

“the amendment does not preclude actions against state officials sued in their official capacity for

prospective injunctive or declaratory relief.” Id. (quoting Ex Parte Young, 209 U.S. 123 (1908)).

It is upon that exception that Kalyango argues his official capacity § 1983 due process claims

against Trower and Anaya may proceed.

“In determining whether the doctrine of Ex parte Young avoids an Eleventh Amendment

bar to suit, a court need only conduct a ‘straightforward inquiry into whether [the] complaint

alleges an ongoing violation of federal law and seeks relief properly characterized as

prospective.’” Verizon Md. Inc. v. PSC, 535 U.S. 635, 645 (2002) (quoting Idaho v. Coeur

D’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997) (O’Connor, J., joined by Scalia and Thomas,

JJ., concurring in part and concurring in judgment)). Prospective relief “merely compels the state

officers' compliance with federal law in the future.” Doe v. Wigginton, 21 F.3d 733, 737 (6th Cir.

1994).

From this, Trower and Anaya assert Ex Parte Young is inapplicable because Kalyango’s

allegations target their past conduct. (ECF No. 33 at 8.) They frame the relevant conduct as

occurring within the investigation of Herman’s ECRC complaint, which completed in August

2018. Id. In contrast, Kalyango responds that he seeks prospective injunctive relief enjoining

Trower and Anaya from violating his due process rights through the continuation of the de-

tenuring process. (ECF No. 39 at 5.)

The problem with Kalyango’s argument is that his First Amended Cross-Claim does not

allege or proffer any factual predicate showing that Trower and Anaya had or have any role in

the de-tenuring process. For certain, Counts Two and Three only refer to the Investigation, not to

the de-tenuring process. Within this framework, then, it becomes clear that Kalyango’s efforts to

seek injunctive relief from Trower and Anaya in their official capacities is based upon their

completed conduct. Hence, the Court GRANTS the Motion to Dismiss of Trower and Anaya in

their official capacities as to Counts Two and Three under Fed. R. Civ. P. 12(B)(6).

2. Individual Liability – Qualified Immunity

Due to the above analysis, only Counts Two and Three against Trower and Anaya in their

individual capacities remain at issue. Trower and Anaya allege that they are entitled to qualified

immunity as to those counts. Kalyango counters immunity issues are not properly considered at

the motion to dismiss stage. The Court determines that immunity applies in this instance.

To state a § 1983 claim, Kalyango must allege two elements: (1) a deprivation of rights

secured by the Constitution and laws of the United States, and (2) that the defendant deprived

plaintiff of this federal right under the color of law. Jones v. Duncan, 840 F.2d 359, 360-61. In

the case sub judice, Kalyango asserts Trower and Anaya deprived him of his right to due process

while acting under color of law.

Qualified immunity protects government officials “from liability for civil damages

insofar as their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

In so doing, “qualified immunity balances two important interests—the need to hold public

officials accountable when they exercise power irresponsibly and the need to shield officials

from harassment, distraction, and liability when they perform their duties reasonably.” Pearson

v. Callahan, 555 U.S. 223, 231 (2009). Thus, it is important to resolve immunity issues “at the

earliest possible stage in litigation.” Id. 232.

To determine whether a defendant is entitled to qualified immunity, the Court asks two

questions: “whether the facts that a plaintiff has alleged . . . make out a violation of a

constitutional right,” and “whether the right at issue was ‘clearly established’ at the time of

defendant’s alleged misconduct.” Id. 231 (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). It

does not matter which query is addressed first; for immunity to attach, both must be satisfied.

Pearson, 555 U.S. at 236; see also Doe v. Miami Univ., 882 F.3d 579, 2018 WL 797451, at *17

(6th Cir. 2018) (internal citations omitted). When a defendant raises qualified immunity as a

defense, the plaintiff bears the burden of demonstrating that the defendant is not entitled to that

defense. Baker v. City of Hamilton, 471 F.3d 601, 605 (6th Cir. 2006).

i. Trower

Within the context of his § 1983 Due Process Investigation counts, Kalyango alleges

Trower, or someone under her direction, told Herman to resign from YALI “for the purpose of

setting up a false title IX claim” against him. (ECF No. 19 ¶ 88.) He asserts that by so doing,

Trower “failed to abide by University Guidelines, regulations, the Faculty Handbook in effect at

the time and well-established Ohio and federal law with regard to her advice and directive to

plaintiff.” Id. ¶ 90. He continues by asserting that as a “result of that unlawful, negligent and

misleading directive,” Herman resigned and filed her ECRC complaint which yielded “financial

loss, destruction of reputation and irreparable damage” to him via the Memorandum. Id. ¶ 91.

Lastly, he claims that Trower supervised the investigation, and did not provide him with “an

opportunity to directly question the plaintiff or to have her cross-examined. . . .” Id. ¶ 35.)

To begin, there is no procedural due process claim arising from Trower’s assumed failure

to adhere to University policies and guidelines. See Anderson v. Ohio State University, 26 Fed.

Appx. 412, 414 (6th Cir. 2001) (citing Purisch v. Tenn. Tech. Univ., 76 F.3d 1414, 1423 (6th Cir.

1996) (“Violation of a state’s formal procedure, however, does not in and of itself implicate

constitutional due process concerns.”). Next, Kalyango neither alleges nor asserts facts sufficient

to find that his “negligent advice” count involves a clearly defined constitutional right. Instead,

Kalyango alleges that “as a result of the improper, negligent advice” Herman filed the ECRC

complaint. (ECF No. 19 ¶ ¶ 90-91.) But causation is not at issue in a due process analysis;

instead, the relevant query is whether the alleged deprivation occurred without due process of

law. Zinermon v. Burch, 494 U.S. 113, 125, 110 S. Ct. 975, 983 (1990).

Trower also properly argues that Kalyango’s claimed right to to cross-examine Herman

during the sexual harassment investigation is not clearly established. (ECF No. 47 at 9.) To be

found “clearly established,” “the contours of the right must be sufficiently clear that a reasonable

official would understand that what he was doing violates that right.” Doe v. Univ. of Cincinnati,

173 F. Supp. 3d 586, 604-06 (S.D. Ohio 2016) (citing Anderson v. Creighton, 483 U.S. 635, 640

(1987)). When considering whether a right is clearly established, “a district court must look to

then-existing binding precedent from the Supreme Court, the Sixth Circuit or itself.” Klemencic

v. Ohio State Univ., 111 F.3d 131 (6th Cir. 1997). The determination of whether a right is

clearly established must be “undertaken in light of the specific context of the case, not as a broad

general proposition.” Wilson v. Columbus Bd. of Educ., 589 F. Supp. 2d 952, 964 (S.D. Ohio

2008) (quotation omitted).

Kalyango offers no authority establishing that the ability to cross-examine accusers in the

context of an university’s sexual harassment investigation regarding a professor’s conduct

toward a student is a “clearly established right.” Nor could the Court locate any. And, turning to

the specific context of this case, the Memorandum served only to make recommendations, not to

effect discipline itself. In this regard, Kalyango does not assert that he lacked notice of the

investigation, or that he was not permitted to provide a statement. Under these circumstances, the

Court concludes that Kalyango has failed to allege facts sufficient to show his interest in cross-

examining Herman during the investigation was a “clearly established right” such that dismissal

of this count on qualified immunity grounds under Fed. R. Civ. P. 12(b)(6) is proper.

Finding that Kalyango fails to allege the existence of a clearly established constitutional

right, the Court GRANTS Trower’s Motion to Dismiss (ECF No. 33) Count Two against her in

her individual capacity based upon qualified immunity.

ii. Anaya

Kalyango defines his § 1983 Due Process Investigation claim against Anaya to include

Anaya’s “blatantly violat[ing] the University’s regulations, guidelines, [and] faculty handbook”

by failing to keep contemporaneous notes and by failing to complete the Investigation in a timely

manner. (ECF No. 19 at ¶ ¶ 96-98.) As a result, Kalyango claims “numerous false and injurious

leaks of information to the press” happened that caused him financial and reputational damage.

Id. ¶ 101. He further contends Anaya was biased against him. Id. ¶ ¶ 99-101.

Kalyango fails to sufficiently allege facts showing the existence of a clearly defined

constitutional right through any of Anaya’s highlighted inactions or actions. The Court holds

above that a University’s failure to follow its own rules, guidelines or procedures does not create

due process concerns. See Purisch, 76 F.3d at 1423. Kalyango’s timeliness contention is

premised upon those same publications and is therefore also unpersuasive.

Turning to his allegations that Anaya’s investigatory notes were inadequate, “‘[t]he Due

Process Clause does not require a particular kind of investigation . . . .’” nor does it dictate a

certain level of thoroughness. Doe v. Ohio State Univ., 219 F. Supp. 3d 645, 657 (S.D. Ohio

2016) (quoting Nguyen v. Univ. of Louisville, No. CIV.A. 3:04-CV-457-H, 2006 U.S. Dist.

LEXIS 20082, 2006 WL 1005152, at *4 (W.D. Ky. Apr. 14, 2006)). Thus, this portion of

Kalyango’s claim against Anaya fails.

Kalyango’s final assertion is that he has a clearly defined constitutional right to an

investigation free from bias. “The procedural-due-process analysis focuses on the decision-

maker, not the investigator.” See Kolley v. Adult Protective Servs., 725 F.3d 581, 586-87 (6th

Cir. 2013) (dismissing procedural-due-process claims against social workers and investigators

because it was the juvenile court’s duty, and not the investigators” duty, to provide notice and a

hearing). In this regard, “[d]ue process provides, not a guarantee of a perfect investigation, but

notice and an opportunity to be heard by a neutral decisionmaker.” Doe v. Ohio State Univ., 219

F. Supp. 3d 645, 657 (S.D. Ohio 2016).

To reiterate, the First Amended Cross-Claim asserts Anaya conducted the Investigation

and issued the Memorandum that made recommendations as to next steps for Kalyango; Anaya

did not make any decisions as a result of the Memorandum. Kalyango therefore fails to allege

facts sufficient to attach the “decisionmaker” moniker to Anaya. For certain, Kalyango describes

Anaya as the “biased investigator.” (ECF No. 19 ¶ 42.) Hence, “any claims of bias in the

investigation don’t implicate these due process concerns.” Doe, 219 F. Supp. 3d at 657.

Moreover, Kalyango does not assert that he failed to receive notice of the Investigation or that he

was barred from presenting his side of the events during the Investigation.

To summarize, because Kalyango does not allege sufficient facts showing Anaya violated

a clearly established constitutional right, Anaya is entitled to qualified immunity in his individual

capacity as to Count Two. Anaya’s Motion to Dismiss (Doc. 33) that count under Fed. R. Civ. P.

12(B)(6) is GRANTED.

IV. CONCLUSION

The Court GRANTS Individual Defendants’ Motion to Dismiss (ECF No. 33)

Kalyango’s Amended Cross-Claims. Counts Two through Seven are dismissed.

IT IS SO ORDERED.

/s/ Sarah D. Morrison

SARAH D. MORRISON

UNITED STATES DISTRICT JUDGE