ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS
Plаintiff Keifer Johnson (“Plaintiff’) brings this action against Western State University and some of its employees (“Defendants”) under 42 U.S.C. § 1983 and Title IX of the Civil Rights Act of 1964, 20 U.S.C. § 1681 et seq. (“Title IX”), arising out of disciplinary action taken against him for a sexual relationship he engaged in with another student. (ECF No. 1.) After significant litigation early in this case, the operative pleading is Plaintiffs Third Amended Complaint (“TAC”). (ECF No. 138.) Before the Court are Defendants’ Motions to Dismiss (“Motions”). (ECF No. 150 & 163.) For the reasons set forth below, the Motions are granted in part and denied in part.
I. LEGAL STANDARD
The Motions are brought pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).
Rule 12(b)(1) empowers a court to dismiss a complaint for “lack of jurisdiction over the subject matter.” Fed.R.Civ.P. 12(b)(1). Dismissal under Rule 12(b)(1) is not a judgment on the merits of a plaintiffs ease. Rather, it calls fоr a determination that the court lacks authority to adjudicate the matter, attacking the existence of jurisdiction rather than the allegations of the complaint. See Castaneda v. INS,
A Rule 12(b)(1) motion to dismiss “must be determined from the allegations of fact in the complaint, without regard to mere conclusory allegations of jurisdiction.” Groundhog v. Keeler,
Under Federal Rule of Civil Procedure 12(b)(6), a defendant may move to dismiss a claim in a complaint for “failure to state a claim upon which relief can be granted.” In evaluating such a motion, a court must “assume the truth of the plaintiffs well-pleaded factual allegations and view them in the light most favorable to the plaintiff.” Ridge at Red Hawk, L.L.C. v. Schneider,
II. FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs TAC is eighty-two pages in length and contains 379 numbered paragraphs. (ECF No. 138.) In this section, the Court sets forth only those facts necessary for the Court’s ruling on the pending Motions.
Plaintiff Keifer Johnson is a student at Defendant Western State University (“Western”), a four-year public liberal arts college in Gunnison, Colorado. (TAC ¶ 3.) The other Defendants hold various positions at Western: Brad Baca is Western’s President, Gary Pierson is the Vice President of Student Affairs and Dean of Students, Sara Phillips is the Title IX Coordinator, Chris Luekenga is the Associate Vice President for. Student Affairs, and Susan Coykendall is an employee-faculty member. (IdA 5.)
In May 2013, Plaintiff was a freshman student at Western on a partial athletic scholarship for cross-country and track and field. (TAC ¶ 12.) During the spring 2013 semester, Plaintiff served as a teaching assistant for an English course. (7dN 13.) This position consisted primarily of tutoring other students, and Plaintiff received three credit hours for his work. (Id-¶ 14.) Onna Gould was a freshman student in the class for which Plaintiff was a teaching assistant. (7<1¶ 16.)
During finals week of spring 2013, Plaintiff and Ms. Gould began a sexual relationship. (7<1¶ 17.) They had both read and were interested in the “Fifty Shades of Grey” erotic novels, and frequently assumed dominant/submissive roles in bond
Plaintiffs relationship with Ms. Gould continued through the summer of 2013, and they continued to exchange e-mail messages, text messages, and messages through their Facebook accounts related to the dominant/submissive roles they assumed in their sexual encounters. (Id-¶ 21.) On June 28, 2013, Plaintiff sent a letter to Ms. Gould (“Dear Onna Letter”) which contained multiple references to sado-masochistic acts that he wished to perform on her. (EOF No. 111-6.) Plaintiff ended his relationship with Ms. Gould on July 27, 2013 by delivering her a letter to her home. ■ (TAC ¶ 29.) For reasons unrelated to her relationship with Plaintiff, Onna Gould did not return to Western for the fall semester of 2013. (77.¶¶ 19-20.)
In late July, Angela Gould — Onna Gould’s mother — contacted Susan Coyken-dall, a professor at Western, and indicated that she wished to have Plaintiff expelled from Western. (Id.% 31.) Ms. Coykendall volunteered to file a complaint on the Gould’s behalf because she was not comfortable with a teaching assistant engaging in a relationship with a student. (7&¶ 33.) The Goulds exchanged a number of e-mails with Coykendall about whether to take action against Plaintiff. (7<7¶¶ 33-37.)
In mid-August 2013, Angela Gould contacted Chris Luekenga and lodged a complaint against Plaintiff. (77. ¶ 48.) Angela Gould provided Mr. Luekenga with a copy of a letter that she had written to Plaintiffs parents (ECF No. 111-5), as well as a copy of the Dear Onna Letter. (Id.) Luekenga responded that the matter had been referred to Western’s Title IX coordinator, and that an official Title IX investigation would proceed. (77. ¶ 49.) At that point, Sarah Phillips became involved, and began communicating with the Goulds regarding their complaint against Plaintiff. (77. ¶ 52.)
On August 17, 2013, Plaintiff received an e-mail message from a professor in the English department stating that Plaintiff would not be permitted to continue as a teaching assistant in the fall 2013 semester. (77. ¶ 64.) This e-mail gave Plaintiff no reason for the decision, but directed Plaintiff to contact Western’s Student Affairs Office if he had any questions about the decision. (Id.)
On August 20, 2013, Plaintiff went to see Gary Pierson. (77. ¶ 65.) Pierson interviewed Plaintiff at length about his relationship with Onna Gould, including their sexual relationship and whether all sexual encounters were consensual, and showed Plaintiff a copy of the Dear Onna Letter. (Id.) Plaintiff was forthcoming with information, and responded to all of Pierson’s questions. He informed Pierson that he had written the Dear Onna Letter, but denied that there was any misconduct in his relationship with Onna Gould. (77. ¶ 68.) Pierson discussed Western’s policies concerning student conduct, primarily by directing Plaintiff to the university’s website. (77.¶ 69.)
On August 23, 2013, Plaintiff went to the university cafeteria and, in the presence of a food service worker, removed Onna Gould’s expired student identifiсation card from his wallet. (77. ¶ 77.) Ms. Gould’s card was confiscated and Plaintiffs possession of the card was reported to the university. (77.¶78.) On August 24, 2013, Plaintiff and several other classmates were caught by a resident assistant sneaking into a university dormitory window. (Id.) This was also reported to university officials. (Id.)
On August 26, 2013, Plaintiff received a letter from Chris Luekenga notifying him of a disciplinary hearing scheduled for Au
On the same day he received the notice of the hearing, Plaintiff went to speak with Luekenga in his office. (7&¶ 83.) Luek-enga explained that the university had received a complaint from an outside party related to Plaintiffs relationship with Onna Gould. (Id.) As he had with Pier-son, Plaintiff was forthcoming about the nature of their relationship, and denied all misconduct. (Id.) This meeting replaced the disciplinary hearing scheduled for August 28, 2013. (7dJ 86.)
On August 28, 2013, Luekenga issued a letter with his findings for the First Disciplinary Proceeding. (Id.) The letter stated that the First Disciplinary Proceeding related to incidents of “1) inappropriate behavior, 2) misuse of an identification card, and 3) breaking and entering”. (Id.) Plaintiff was sanctioned with 48 hours of community service, was directed to write a letter of apology to the cafeteria staff, had to attend four counseling sessions, and was placed on probation for one year. (Id.)
On August 30, 2013, Plaintiff received a letter from Sarah Phillips, Western’s Title IX coordinator, informing him that the university had learned of alleged sexual misconduct by Plaintiff and directing him to meet with Ms. Phillips on September 3, 2013 to discuss the complaint, as well as the university’s investigation process (“Second Disciplinary Proceeding”). (Id-¶ 87.) At the September 3, 2013 meeting, Plaintiff was informed that the university had received a new complaint which was not related to the First Disciplinary Proceeding, and that it was being investigated under Title IX. (7^.¶ 88.) As he had with Pierson and Luеkenga, Plaintiff responded to Phillips’s questions and was forthcoming about the nature of his relationship with Onna Gould. (Id.H 89.)
On September 5, 2013, Plaintiff received a letter from Edward Klein, a Title IX deputy, asking Plaintiff to meet with him on September 10, 2013 so that Klein could “do some fact finding surrounding the complaint.” (7<2.¶ 106.) Plaintiff attended that meeting with his attorney and was provided, for the first time, with an unsigned, two-page, typed list of events that was allegedly received by the university from Onna Gould on August 29, 2013. (7<7.¶ 94.) Western informed Plaintiff that Onna Gould’s complaint included allegations that constituted rape or sexual assault. (7<7.¶ 98.) On the advice of counsel, Plaintiff declined to answer any questions or make any comments. (7dJ 108.)
A hearing on the allegations in the Second Disciplinary Proceeding was held on Decembеr 10-11, 2013. (7dJ112.) The hearing was moderated by Luekenga, and prosecuted on behalf of Western by Phillips and Pierson. (7&¶¶ 112, 114.) Neither Angela Gould nor Onna Gould was present at the hearing, and the only evidence presented by the university was the unsigned, two-page list of events which was allegedly lodged by Onna Gould. (Id-¶ 111.) The disciplinary board found in favor of Plaintiff, but no rationale was ever provided. (7<7.¶ 117.) Plaintiff received no additional sanctions as a result of the Second Disciplinary Proceeding.
III. ANALYSIS
On these facts, Plaintiffs TAC brings twelve claims which can be placed into four
A. Title IX Claims
Title IX provides that “[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681. Title IX is enforceable through an implied private right of action for monetary damages as well as injunctive relief. See Franklin v. Gwinnett Cnty. Pub. Sch.,
“Title IX was enacted to supplement the Civil Rights Act of 1964’s bans on racial discrimination in the workplace and in universities.” Yusuf v. Vassar College,
There are multiple tests for determining whether a plaintiff has stated a discrimination claim under Title IX. See Yusuf,
Defendants move to dismiss all four of Plaintiffs Title IX claims on the grounds that he has not pled sufficient facts to show that either the First or Second Disciplinary Proceeding resulted from any gender bias. (ECF No. 150 at 9, 12.) With regard to the First Disciplinary Proceeding, Plaintiff alleges that he has shown gender bias based on the fact that Onna Gould acted in a similar manner to him, but was not disciplined by Western. (ECF No. 157 at 157 at 7-8.) Specifically, Plaintiff contends that his exchange of sexually graphic letters with Ms. Gould was mutual, and the fact that he was disciplined for the language used in his letter to her, but that she faced no discipline for the letters she wrote to him, shows that the First Disciplinary Proceeding was motivated by a gender bias. (Id.)
A plaintiff may meet his prima facie burden of creating an inference of gender discrimination by stating facts showing that he was treated differently than someone of the opposite gender who was similarly situated to him. See Tomsic v. State Farm Mut. Auto. Ins. Co.,
Given the allegations in the TAC, the Court finds that Plaintiff and Onna
Given their disparate relationships to the university, the Court finds that Plaintiff was not similarly situated to Onna Gould in all material respects. See Goenaga v. Milmar Food Grp., Inc.,
With respect to both proceeding^, Plaintiff argues that gender bias is apparent from the fact that a “conspiratorial effort of a group of females (Goulds, Boyk-endall, Phillips, Shelley Reed, and Alina Luna) ... worked jointly to bring about a Title IX disciplinary action against Plaintiff.” (ECF No. 157 at 8.) In the TAC, Plaintiff points out that 83% of Western’s English Department were female. (TAC ¶ 39.) From this, Plaintiff appears to argue that he can raise an inference of gender bias simply by alleging that the disciplinary action was taken by a group of individuals of the opposite sex.
First, this argument is not factually suрported by the allegations in the TAC. Plaintiff alleges that the decision to initiate the First Disciplinary Proceeding was made by Defendants Phillips, Pierson, and Luekenga — two of whom are males — and that Luekenga and Pierson are the individuals who repeatedly interviewed Plaintiff as part of the investigation. (TAC ¶¶ 58, 65-68.) Although the Second Disciplinary Proceeding was allegedly brought by Ms. Phillips in her capacity as Title IX coordinator, Plaintiff alleges that Pierson and Luekenga were involved in the investigation, and that Edward Klein, Western’s Title IX Deputy, communicated with and interviewed Plaintiff as part of the university’s investigation. (Mlffl 106-07.) Finally, Plaintiff alleges that the two day hearing conducted on the Second Disciplinary Proceeding was conducted a panel that included both male and female members, and was moderated by Mr. Luekenga. (Id.W 112, 114.) Taking these allegations as true, as the Court must, they do not support Plaintiffs argument that the disciplinary proceedings were the result of a conspiracy among a group of women.
Additionally, Plaintiff cites no case law supporting his position that disciplinary action taken by members of the
“A plaintiff alleging racial or gender discrimination by a university must do more than recite conclusory assertions. In order to survive a motion to dismiss, the plaintiff must spеcifically allege the events claimed to constitute intentional discrimination as well as circumstances giving rise to a plausible inference of ... discriminatory intent.” Yusuf,
Accordingly, Defendants’ Motions to Dismiss are granted to the extent they seek dismissal of all claims brought under Title IX, and such claims are dismissed.
B. Section 1983 Claims
. Plaintiff brings five claims pursuant to 42 U.S.C. § 1983, four involving an alleged violation of Due Process rights, and one allеging a First Amendment free speech violation. Defendants move to dismiss all claims, arguing: (1) Plaintiff has failed to allege sufficient facts ,to state a claim; (2) any claim brought against Defendants in their official capacity is barred by Eleventh Amendment immunity; and (3) any claim brought against Defendants in their individual capacities is barred by qualified immunity. (EOF Nos. 150 at 18-28; 163 at 8-12.) The Court will address these arguments in turn below.
1. Sufficiency of Pleading — Due Process Claims
In Claims Six, Seven, Eight, and Nine, Plaintiff alleges that various aspects of the Second Disciplinary Proceeding violated his Due Process rights under the Fourteenth Amendment. (TAC ¶¶ 295-348.) In Claim Seven, Plaintiff alleges that he was not adequately informed of the basis of the complaint against him, that he was not sufficiently apprised of his rights, and that he was denied various procedural requirements. (/<1¶¶ 317-18.) In Claims Eight аnd Nine, Plaintiff alleges that he was inappropriately subjected to multiple disciplinary proceedings involving the same subject or related to the same events, and that he was denied counsel during those proceedings. (/<2.¶¶ 325-48.) Finally, in Claim Six, Plaintiff alleges that Western inadequately trained and supervised its . Title IX coordinators. (/&¶¶ 295-315.)
In Goss v. Lopez,
The Tenth Circuit has held that a student has no protected property interest in participating in any specific school-sponsored activity. Albach v. Odle,
Although Plaintiff received academic credit to serve as a teaching assistant, which makes that distinguishable from a purely extracurricular activity, the Tenth Circuit has held that а student does not have a protected right to a particular curriculum. See Seamons,
The Court has already held that Plaintiff has failed to state a claim under Title IX for gender discrimination. Accordingly, Plaintiff has likewise failed to allege that he was deprived of an education free from such discrimination. Finally, harm to one’s reputation and humiliation are not sufficient to show that a plaintiff wаs deprived of a liberty or property interest. Seamons,
As Plaintiff has not alleged sufficient facts showing that the Second Disciplinary Proceeding deprived him of any protected liberty or property interest, he has failed to state a claim for a violation of his procedural due process rights. Ky. Dep’t of Corr. v. Thompson,
2. First Amendment
In Claim Five, Plaintiff alleges that the First Disciplinary Proceeding violated his First Amendment right to free speech, as he was punished for the Dear Onna Letter. (TAC ¶¶ 281-85.) Claim Five is brought against Defendants Baca, Pierson, Phillips, Luekenga, and Coykendall in their official capacities only, and seeks compensatory damages, a declaration that the First Disciplinary Proceeding violated the First Amendment, and injunctive relief in the form of expungement of the First Disciplinary Proceeding from Plaintiffs official student file. (Id. ¶¶ 292-94.)
Defendants contend that Plaintiff has failed to allege sufficient facts to state a claim for a First Amendment violation. (ECF No. 150 at 26.) To state a claim for a violation of the First Amendment fight to free speech, a plaintiff must allege that he engaged in constitutionally protected activity, that the defendant’s actions caused plaintiff to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity, and that the defendant’s adverse action was substantially motivated as a response to the plaintiffs exercise of constitutionally protected conduct. Worrell v. Henry,
With regard to the first prong&emdash;whether the speech at issue was protected&emdash;Defen-dants contend that Plaintiffs factual allegations fall short because the Dear Onna Letter was “sexually graphic with elements of violence.” (ECF No. 150 at 27 (citing TAC ¶ 223).) While the First Amendment generally protects an individuаl’s right to free speech, a number of different types of speech are not protected. See, e.g., Virginia v. Black,
“True threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual оr group of individuals.” Black,
Whether speech constitutes a “true threat” for purposes of determining whether the speech is protected by the First Amendment is generally a question
In this case, Plaintiff repeatedly alleges that the Dear Onna Letter was part of a mutually-agreed upon sexual fantasy relationship between himself and Onna Gould. Taking these allegations as true, as the Court must on a motion to dismiss, a reasonable juror could conclude that the contents of the Dear Onna Letter did not constitute a “true threat” and were, therefore, protected speech. Accordingly, the Court finds that Plaintiff has met his burden of pleading that his speech was protected by the First Amendment.
With regard to the motivation for the First Disciplinary Proceeding, Defendants contend that Plaintiff has alleged facts showing that it began in response to Plaintiff’s behavior, rather than his speech. (Id. at 26.) Specifically, Defendants argue that the First Disciplinary Proceeding related to Plaintiffs behavior toward Onna Gould. (Id.) In the TAC, Plaintiff alleges that, as a result of the First Disciplinary Proceeding, he was found to have engaged in “inappropriate behavior towards another student.” (TAC ¶ 278.) While this seems to support Defendants’ argument, Defendants ask the Court to ignore Plaintiffs allegation that “[t]he purported 'inappropriate behavior towards another student First Disciplinary Proceeding was based upon the writing and delivery of the Dear Onna Letter, and the contents ... within the letter.” (TAC ¶ 280 (emphasis added).)
In evaluating a motion to dismiss, the Court must draw all reasonable inferences in the plaintiffs favor. A reasonable inference from the allegations in the TAC is that Plaintiff was punished, at least in pаrt, for the content of the Dear Onna Letter, which constitutes speech and not behavior. Thus, the Court finds that Plaintiff has alleged sufficient facts to satisfy his burden of showing that the First Disciplinary Proceéding was motivated by his protected speech.
As Plaintiff has pled sufficient facts to satisfy each element of his First Amendment free speech claim, the Court rejects Defendants’ argument that he has failed to state a claim.
The State of Colorado is protected by Eleventh Amendment immunity. See Will v. Mich. Dep’t of State Police,
However, in Ex parte Young,
Given this case law, it is clear that Plaintiffs claims for monetary damages and retrospective declaratory relief are barred by the Eleventh Amendment. However, Plaintiffs request for injunctive relief in the form of expungement of his record falls within the Ex parte Young exception. Plaintiff claims that the inclusion of the First Disciplinary Proceeding on his official academic record violates his First Amendment free speech rights on an ongoing basis, which is an ongoing violation of federal law. (TAC ¶ 287.) With regard to the second prong, other courts have held that a request to expunge an academic record is a request for prospective relief. See, e.g., Shepard v. Irving,
C. State Law Claims
In Claims Ten, Eleven, and Twelve, Plaintiff alleges that Defendants Phillips and Coykendall, in their individual capacities, engaged in malicious prosecution, civil conspiracy, and extreme and outrageous conduct. (TAC ¶¶ 349-379.) Both Defendants move to dismiss this claim as barred by the Colorado Governmental Immunity Act (“CGIA”), Colo.Rev.Stat. §§ 24-10-101 et seq. (ECF No. 150 at 28; ECF No. 163 at 12.)
Defendants contend that Plaintiff has not satisfied CGIA’s notice provisions, and that such failure is fatal to all three state law claims. (ECF No. 150 at 28.
Any person claiming to have suffered an injury by a public entity ..., whether or nоt by a willful and wanton act or omission, shall file a written notice as provided in this section within one hundred eighty days after the date of the discovery of the injury, regardless of whether the person then knew all of the elements of a claim or of a cause of action for such injury.
Colorado courts strictly construe § 24-10-109(1) and consistently hold that “[c]om-plying with the notice of claim [as set forth in section 24-10-109(1) ] is a jurisdictional prerequisite to suit.” Gallagher v. Bd. of Trs. for Univ. of N. Colo.,
Additionally, “a claimant must allege in his or her complaint that the claimant has complied with the jurisdictional prerequisite of filing of a notice of claim.” Kratzer v. Colo. Intergovernmental Risk Share Agency,
In this case, the TAC states:
This action was filed against Defendant Sara Phillips on a forthwith basis, seeking temporary injunctive relief. Subsequently a temporary restraining orderwas entered against Defendant Phillips and other defendants to preclude them from proceeding against the Plaintiff; that restraint was lifted in November, 2013. Strict compliance of the CGIA’s notice requirements was a legal impossibility. Substantial compliance of all thе notice requirements occurred with the filing of the action itself, when the Complaint and Jury Demand were served upon the Colorado Attorney General.
(TAC ¶ 350.) The following paragraph repeats these allegations with regard to the claims against Defendant Coykendall. (/¿.¶ 351.)
In the briefing on the instant Motions, Plaintiff makes no attempt to explain why providing the notice required by the CGIA was a “legal impossibility”. (ECF No. 157 at 24-25.) Plaintiff instead argues that Defendants had “actual notice” of the claims against them because he filed his original Complaint within 180 days. (Id.) However, Colorado courts have explicitly held that the filing and service of a complaint within the time allowed for in ‘§ 24-10-109(1) is not sufficient to satisfy CGIA’s notice provisions. Kratzer,
Because it is undisputed that Plaintiff did not serve a notice of claim on either Defendant Phillips or Coykendall within 180 days of the date he discovered his injury, the Court lacks subject matter jurisdiction over Plaintiffs state law claims. Accordingly, Defendants’ Motions to Dismiss are granted as to Claims Ten, Eleven, and Twelve, and such claims are dismissed without prejudice for lack of jurisdiction.
IV. CONCLUSION
For the reasons set forth above, the Court ORDERS as follows:
1. Defendants Western, Baca, Pierson, Phillips, and Luekenga’s Motion to Dismiss Plaintiffs Third Amended Complaint (ECF No. 150) is GRANTED IN PART and DENIED IN PART;
2. Defendant Susan Coykendall’s Motion to Dismiss Plaintiffs Third Amended Complaint Pursuant to Fed.R.Civ.P. 12(b)(6) and 12(b)(1) (ECF No. 163) is GRANTED IN PART and DENIED IN PART;
3. Plaintiffs claims arising under Title IX (Claims 1-4) are DISMISSED WITH PREJUDICE;
4. Plaintiffs § 1983 claims alleging procedural due process violations (Claims 6-9) are DISMISSED WITH PREJUDICE;
5. Plaintiffs § 1983 First Amendment claim (Claim 5) is DISMISSED WITHOUT PREJUDICE in so far as it seeks monetary damages or declaratory relief;
6. Plaintiffs state law claims (Claims 10-12) are DISMISSED WITHOUT PREJUDICE as barred by the CGIA;
7. This case shall proceed only as to Plaintiffs § 1983 First Amendment claim (Claim 5) in so far as it seeks prospective injunctive relief in the form of expungement of the First Disciplinary Proceeding from Plaintiffs official academic record; and
8. Per Magistrate Judge Boyd N. Bo-land’s May 15, 2014 Order, Plaintiff shall file a status report within ten days of this Order.
Notes
. While this case has a lengthy procedural background, including litigation of a temporary restraining order and preliminary injunction, the Court finds that these proceedings do not impact its analysis with regard to the Motions to Dismiss. As such, the Court will not discuss these earlier proceedings here.
. Because the Court has found that Plaintiff has failed to state a claim, it need not address Defendants' alternate arguments regarding Eleventh Amendment immunity and qualified immunity as to the Due Process claims.
. The Court notes that Defendants have asserted qualified immunity against all § 1983 claims (ECF No. 150 at 18), which would ordinarily require the Court to determine whether the constitutional violation pled by Plaintiff was clearly established at the time of Defendants’ actions. See Pearson v. Callahan,
. While the denial of qualified immunity ordinarily gives rise to the ability to appeal such ruling on an interlocutory basis, see Behrens v. Pelletier,
. Defendant Coykendall incorporates this argument by reference in her opening brief. (ECF No. 163 at 2 n.l.)