Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 1 of 7 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:13-CV-02747-WJM-BNB KEIFER JOHNSON, vs. Plaintiff, WESTERN STATE COLORADO UNIVERSITY, BRAD BACA, in his official capacity as president of Western State Colorado University, GARY PIERSON, in his official capacity as Vice President Student Affairs & Dean of Students, and SARA PHILLIPS, individually, and in her official capacity as Title IX Coordinator, Defendants. PLAINTIFF S EMERGENCY EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER COMES NOW Plaintiff, Keifer Johnson, by and through his undersigned counsel, and moves the Court, pursuant to C.R.Fed.P. 65(b)(1), for an ex parte order temporarily restraining Defendants from subjecting Plaintiff to further administrative or adjudicative procedures pending this Court s determination of his Motion For Preliminary Injunction And Request For Forthwith Hearing (Doc.2), as there now exists the potential for immediate irreparable injury, based upon Defendants scheduling a disciplinary hearing against the Plaintiff for Tuesday, October 22, 2013, which could result in his immediate
Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 2 of 7 suspension or expulsion from the University. In support of this motion and the need to proceed ex parte, Plaintiff states as follows: I. SUMMARY Plaintiff filed this action on October 8, 2013, seeking preliminary and permanent injunctive relief against the Defendants. This motion for a restraining order seeks only to maintain the status quo that existed at the time of the filing of the lawsuit, thereby allowing the court-ordered expedited briefing scheduling to proceed as anticipated, and to afford the Court the opportunity to determine whether an evidentiary hearing concerning the requested preliminary injunction should be conducted. See Doc.10 (establishing briefing schedule on Plaintiff s motion for preliminary injunctive relief). Defendants, with full knowledge of and despite the Court s order for expedited briefing, have nonetheless chosen to proceed with the administrative disciplinary proceeding that Plaintiff sought to have stayed by preliminary injunction. Defendants are seeking to quickly change the status quo, by conducting disciplinary proceedings before the Motion For Preliminary Inunction becomes at issue, and foreclosing the Court from providing Plaintiff with prospective injunctive relief. Emergency ex parte relief is appropriate, as Plaintiff is now subject to the threat of immediate and irreparable injury if the Court does not issue a temporary restraining order against Defendants. 2
Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 3 of 7 II. BACKGROUND AND BASIS FOR IMMEDIATELY EX PARTE RELIEF Chronology of Events Related to Ex Parte Motion. This case was initiated on Tuesday, October 8, 2013, seeking to temporarily enjoin Defendants from conducting further disciplinary proceedings against Plaintiff. Doc.1 1 and 2. No disciplinary proceedings had been scheduled as of the date the case was filed. Informal notice of the case and the pleadings was immediately provided via email to all Defendants and to the Colorado Attorney General s office, with whom Plaintiff s counsel had been communicating on the matter since September 11, 2013. See Exhibit A Email to Asst. AG E. Weston 10-8-13. On Wednesday, October 9, 2013, this case was assigned to Judge Martinez who ordered an expedited briefing schedule concerning the Motion for Preliminary Injunction. Doc.10 (Text only entry, The Court ORDERS that Defendant file an answer and opposition to the Motion for Preliminary Injunction no later than 7 days after service of the same. Plaintiff may file a reply to the Motion with 7 days of service of the opposition. ) ( Order On Briefing ). Informal notice of that Order on Briefing was immediately provided via email to all Defendants and to the Colorado Attorney General s office. Exhibit B Email to Asst. AG E. Weston 10-9-13. 1 The factual background provided in the Complaint, which was verified by the Plaintiff, is incorporated herein by reference. 3
Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 4 of 7 On Thursday, October 10, 2013, Plaintiff s counsel was contacted by Jon Fero of the Colorado Attorney General s office, who stated, The College will only respond to a valid and proper request to waive service. The waiver must be in the correct form and properly requested as set forth in the Federal Rules of Civil Procedure. The Attorney General s Office expects to receive a prepaid means of returning the waiver (ie, a self-addressed and stamped envelope). Your request and the actual waiver form should be worded to allow for 30 days after the date of your request for the College to sign the waiver. I assure you that a proper waiver request will be addressed promptly, but it is imperative that the Rules be followed so that the College is afforded the full 60 days from the time of the waiver within which to file an Answer to the Complaint. The form you emailed incorrectly equates the date for the waiver request as the starting time for the answer period to run. Also, once the waiver is signed and returned, it is your duty to file the signed waiver with the Court. I will be calling you soon to discuss this in any more detail you may require. Exhibit C Asst. AG Fero Email to Plaintiff s Counsel, 10-10-13. On Tuesday, October 15, 2013, Plaintiff s counsel communicated by telephone with Mr. Fero regarding Defendants demand for strict compliance of F.R.Civ.P. 4(d) and its desire to have up to 60 days in which to respond to the pleadings. Plaintiff s counsel offered to stipulate to any reasonable amount of time for Western State to respond, if Defendants would agree to hold further disciplinary proceedings in abeyance pending the Court s consideration of the Motion For Preliminary Injunction. On Tuesday, October 16, 2013, Mr. Fero, after consultation with University officials, left Plaintiff s counsel a telephone message saying that full compliance with service of process rules would be required and, in the meantime, the University intended to proceed to conduct a disciplinary hearing against Mr. Keifer on Tuesday, October 22, 2013. 4
Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 5 of 7 Immediately after receiving Mr. Fero s message, Plaintiff received an email from University administrator Edward Klein that stated, Your adjudication meeting is scheduled for Tuesday October 22, 2013 @ 8:30 a.m. Dr. Terry Schliesman, Ms. Janna Hansen and Mr. Robert Swinton will be seated as your hearing officers. Mr. Chris Luekenga will serve as the moderator. This meeting will be held in Taylor 301. Please refer to Section Seven IX.A.4 in the Student Handbook, in regards to having an advisor attend this hearing and the role of that advisor. Exhibit D Western Univ. Ltr. to Keifer Johnson, 10-16-13 (the letter is incorrectly dated October 14, 2013; attached to the letter is the transmittal email from Edward Klein to Keifer Johnson, indicating it was actually sent on October 16, 2013 at 2:04 PM). On October 15, 2013, with the indication that the University would not hold the proceedings in abeyance, Plaintiff s counsel requested summonses issue from the Court. Doc.13, attachments 1-5. The Clerk of the Court issued five summonses on October 16, 2013. Docs.14-18. On that same day, service of process was effected on the Office of the Attorney General and on Defendant Gary Pierson. Docs.19 and 20. On October 17, 2013, service of process was effected on the remaining Defendants. Docs.21-23. Basis For Ex Parte Relief. On October 9, 2013, in its Order On Briefing, the Court correctly concluded that, at that time, the Plaintiff did not face imminent harm and he would not suffer if the Defendants were afforded a reasonable opportunity to be heard on the motion. Doc.2. The Court established an accelerated response and briefing schedule, presumably to accommodate both parties, and presumably with the belief that the status quo would be maintained until the Court determined whether an evidentiary hearing was required, based upon the briefs. Regardless of the Court s 5
Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 6 of 7 exact intent, the Defendants efforts to move forward rapidly and conduct the disciplinary hearing before the seven-day response period will run, is nothing less than an end-around the Court s efforts and authority to consider the motion for preliminary injunction. Apparently the Defendants, seeing nothing in the Court s Order on Briefing specifically precluding them from conducting the hearing, have chosen to rush towards the potential imposition of irreparable harm. Conducting such a hearing would effectively moot the motion for preliminary injunctive relief in its entirety. Defendants rush to subject Plaintiff to potentially legally flawed disciplinary proceedings carries the risk of Plaintiff being adjudicated to have committed sexual assault, with the potential penalties of suspension or expulsion from the school. The approbation of being found to have committed sexual assault by a governmental, quasijudicial body, is extreme. Such a finding carries a taint that, like the bell that can t be unrung, would be irreparable. The resultant additional damages from an unjustified removal from school in the middle of the semester would include substantial lost school time, money spent on tuition, and credit hours otherwise partially earned in the semester. Further, Plaintiff is a member of the school track team and would lose the once-per-year opportunity to participate in the National Championship meet scheduled in November. The potential damage to the Plaintiff is extreme, irreparable, and life altering. The relief requested herein by Plaintiff maintains the status quo without diminishing the authority or rights of either party during a brief period in which the Court may analyze the procedures. 6
Case 1:13-cv-02747-WJM-BNB Document 23 Filed 10/17/13 USDC Colorado Page 7 of 7 III. CERTIFICATION OF COUNSEL Counsel, by his signature below, certifies that notice of this motion will be provided by email to the Defendants and representatives of the Office of the Attorney General immediate upon filing with the Court. Based upon Defendants counsel s previous representations and refusal to act until this matter (or motions herein) are at issue, the verified complaint and exhibits attached to this motion clearly show that an immediate irreparable injury will result to the Plaintiff before the adverse party can be heard in opposition. IV. CONCLUSION WHEREFORE, Plaintiff requests the Court immediately enter a Temporary Restraining Order, directing that Defendants are restrained from conducting any disciplinary hearing or taking any further administrative actions against Plaintiff regarding the issues involved in this lawsuit, pending further order of the Court. DATED: October 17, 2013 Denver, Colorado Respectfully submitted, By: s/ Gregory R. Stross Gregory R. Stross DONELSON STROSS LLC 8001 Aritsa Place, Suite 400 Broomfield, CO 80021 Telephone: 303-450-1665 Email: gstross@gmail.com ATTORNEYS FOR PLAINTIFF KIEFER JOHNSON 7
Case 1:13-cv-02747-WJM-BNB Document 23-1 Filed 10/17/13 USDC Colorado Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 1:13-CV-02747-WJM-BNB KEIFER JOHNSON, Plaintiff, vs. WESTERN STATE COLORADO UNIVERSITY, BRAD BACA, in his official capacity as president of Western State Colorado University, GARY PIERSON, in his official capacity as Vice President Student Affairs & Dean of Students, and SARA PHILLIPS, individually, and in her official capacity as Title IX Coordinator, Defendants. ORDER GRANTING PLAINTIFF S EMERGENCY EX PARTE MOTION FOR TEMPORARY RESTRAINING ORDER THE COURT, having considered Plaintiff s Emergency Ex Parte Motion For Temporary Restraining Order, having considered the pleadings previously submitted, and having reviewed the Orders previously entered in this matter, does hereby FIND and ORDER: The Court finds the requirements of F.R.Civ.P. 65(b)(1) have been met. The motion is GRANTED on this October, 2013 at a.m. / p.m. It is ORDERED that Defendants are restrained from conducting any disciplinary hearing or taking any further administrative actions against Plaintiff regarding the issues involved in
Case 1:13-cv-02747-WJM-BNB Document 23-1 Filed 10/17/13 USDC Colorado Page 2 of 2 this lawsuit, pending further order of the Court. Pursuant to F.R.Civ.P. 65(b)(2), the Court further FINDS and CONCLUDES that Plaintiff is at high risk of suffering immediate and irreparable injury without intervention of the Court. Defendants now intend to proceed with a disciplinary proceedings that carries the risk of Plaintiff being adjudicated to have committed sexual assault, with the potential penalties of immediate suspension or expulsion from the school, each of which carries substantial approbation that, if wrongfully adjuged, would constitute irreparable harm to the Plaintiff. Notice of the filing of the Plaintiff s Emergency Ex Parte Motion For Temporary Restraining Order was anticipated to be provided to Defendants and their counsel by email immediately upon filing of the motion; in any event, opportunity for Defendants to respond prior to the enjoined event scheduled for October 22, 2013, is not practical. Further, Defendants have previously chosen to provide no deference to the Court s previously entered orders, when provided to them informally by Plaintiff s counsel. This order shall expire no later than 14 days after entry by the clerk, except, for good cause shown by Plaintiff, the order may be extended for a like period. Further orders on the Plaintiff s Motion For Preliminary Injunction may supersede this or any other order entered pursuant to the Motion for Temporary Restraining Order. Persons bound by this Order include any parties who receive actual notice of it by personal service or otherwise, pursuant to F.R.Civ.P. 65(d)(2). DONE on this day of October, 2013. U.S. DISTRICT COURT JUDGE 2