1. society
2. crime
3. property crime
4. fraud

IN THE UNITED STATE DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
REED C. DEMPSEY, and SHELLEY
DEMPSEY,
Plaintiffs
v.
:
:
:
:
:
BUCKNELL UNIVERSITY, JOHN C. :
BRAVMAN, LEWIS A. MARRARA,
:
DANIEL C. REMLEY, AMY A.
:
BADAL, LINDA LOCHER, KARI M.
:
CONRAD, MICHAEL SMYER,
:
CHIEF JASON FRIEDBERG,
:
OFFICER JULIE HOLTZAPPLE,
:
OFFICER DARRELL FISHER,
:
OFFICER ROBERT ULMER,
:
OFFICER JAMES MIDDLETON,
:
OFFICER JED RISHEL, DETECTIVE :
JEFFREY ETTINGER, CAPTAIN
:
DOUGLAS LAUVER, and
:
ANTHONY J. VOCI, JR.,
:
Defendants
:
NO: 4:11-CV-1679
CHIEF JUDGE KANE
CIVIL ACTION - LAW
JURY TRIAL DEMANDED
BRIEF IN OPPOSITION TO
BUCKNELL UNIVERSITY’S MOTION TO DISMISS
TABLE OF CONTENTS
Page:
TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
I.
STATEMENT OF FACTS:.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
II.
ARGUMENT:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
A.
Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
B.
Bucknell’s police officers violated R.D.’s Fourth Amendment
rights when they arrested him without probable cause.. . . . . . . . . . . 17
1.
The arrest and charging of R.D. was clearly state action.. . . . 17
2.
Plaintiffs have alleged each officers’ involvement. . . . . . . . . 22
3.
The officers arrested R.D. without probable cause. . . . . . . . . 24
4.
No reasonable officer would have believed K.S... . . . . . . . . . 29
C.
The officers violated R.D.’s Fourth Amendment rights
when they prosecuted him without probable cause. . . . . . . . . . . . . . 31
D.
Bucknell and the officers’ supervisors are responsible for
R.D.’s arrest and prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
E.
R.D. has stated a state law claim for false imprisonment.. . . . . . . . . 37
F.
The Bucknell officials conspired with each other, K.S. and her
attorney, Voci, to arrest and prosecute R.D. without probable
cause... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
III.
G.
Bucknell officials defamed R.D. when they falsely named him
and portrayed him as a sex offender. . . . . . . . . . . . . . . . . . . . . . . . . . 40
H.
Bucknell officials committed fraud when they misled R.D.
about exculpatory evidence to cover-up their mishandled
investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
I.
Bucknell officials conspired with Voci to commit fraud. . . . . . . . . . 51
J.
Bucknell breached its contract with R.D. when it violated its
Student Handbook.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
K.
Bucknell discriminated against R.D. as a male student
accused of sexually assaulting a female student. . . . . . . . . . . . . . . . 55
L.
Bucknell is liable for negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
M.
Bucknell failed to exercise reasonable cause in its hiring,
training, supervision and retention of its employees. . . . . . . . . . . . . 59
N.
Bucknell Defendants conspired to interfere with R.D.’s contract.. . 59
O.
Bucknell officials intentionally inflicted emotional distress on
R.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
P.
Bucknell officials conspired with each other and Voci to
cause emotional distress to R.D... . . . . . . . . . . . . . . . . . . . . . . . . . . . 63
Q.
Bucknell caused emotional distress to R.D.’s mother, Shelley... . . . 63
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65
ii
TABLE OF AUTHORITIES
Statutes and Rules:
Page(s):
22 P.S. § 501. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
22 P.S. § 501(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
22 P.S. § 501(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
71 P.S. § 646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
71 P.S. § 646.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Cases:
Albright v. Oliver, 510 U.S. 266, 277-80 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . 33
Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
Banyas v. Lower Bucks Hosp., 437 A.2d 1236, 1239 (1981). . . . . . . . . . . . . . . . . 61
Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955,
1964-65, 1969 n. 8 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 56
Bennett v. Norban, 151 A.2d 476 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Berg v. Consolidated Freightways, Inc., 421 A.2d 831 (1980). . . . . . . . . . . . . . . 45
Best v. County of Northumberland, 4:11-CV-00896,
2011 WL 6003853, at *7 (M.D. Pa. Nov. 30, 2011) . . . . . . . . . . . . . . . . . . . . . . . 39
Beverly Enterprises, Inc. v. Trump, 182 F.3d 183,
187 n. 1 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
iii
Blanche Road Corp. v. Bensalem Tp., 57 F.3d 253, 263
(3d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Borrell v. Weinstein Supply Corp., CIV. A. 94-2857,
1994 WL 530102, at *3 (E.D. Pa. Sept. 27, 1994) . . . . . . . . . . . . . . . . . . . . . . . . 44
Boyle v. Torres, 756 F. Supp. 2d 983, 995 (N.D. Ill. 2010). . . . . . . . . . . . . . . . . . 20
Bragle v. Revell, 674 F. Supp. 13, 14 (W.D. Pa. 1987). . . . . . . . . . . . . . . . . . . . . 46
Breslin v. Dickinson Twp., 1:09-CV-1396, 2010 WL
3293337 (M.D. Pa. Aug. 19, 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. Ct. 2000). . . . . . . . . . . . . . . . . 47
Bryant v. Vernoski, No. 11-263, 2011 WL 4400820, at
*4-*5 (M.D. Pa. Sept. 1, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
Chicarella v. Passant, 494 A.2d 1109, 1112 (1985). . . . . . . . . . . . . . . . . . . . . . . 47
Chuy v. Philadelphia Eagles Football Club, 595 F.2d
1265, 1274 (3d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61
City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).. . . . . . . . . . . . . . . . . . 37
City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). . . . . . . . . . . . . . . . . . . 34
Clemente v. Espinosa, 749 F. Supp. 672, 676 n. 4
(E.D. Pa. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 47
Cuturilo v. Jefferson Reg'l Med. Ctr., CIV. 10-1723,
2011 WL 2941031, at *4 (W.D. Pa. July 20, 2011). . . . . . . . . . . . . . . . . . . . . . . . 42
D'Errico v. DeFazio, 763 A.2d 424, 432 (Pa. Super. Ct. 2000). . . . . . . . . . . . . . . 44
iv
Deangelo Bros., Inc. v. Platte River Ins. Co., CIV.A.
3:09-CV-1198, 2010 WL 2635983, at *8 (M.D. Pa.
June 29, 2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60
DeCarlo v. Joseph Horne & Co., 251 F. Supp. 935, 937
(W.D. Pa. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
DiBella v. Borough of Beachwood, 407 F.3d 599,
601 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33
Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1327
(E.D. Pa. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Flagg v. State Sys. of Higher Educ., 904 A.2d 1004,
1008 n. 3 (Pa. Commw. Ct. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Foley v. Connelie, 435 U.S. 291, 297 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009).. . . . . . . . . . . . . . . 16, 62
Franchi v. New Hampton School, 656 F. Supp. 2d 252
(D.N.H. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57
Franklin Prescriptions, Inc. v. The New York Times
Co., 267 F. Supp. 2d 425, 436 (E.D. Pa. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974). . . . . . . . . . . . . . . . . . . . . 41
Green v. Mizner, 692 A.2d 169, 174 (Pa. Super. Ct .1997). . . . . . . . . . . . . . . . . . 46
Henderson v. Fisher, 631 F.2d 1115, 1118 (3d Cir. 1980).. . . . . . . . . . . . . . . . . . 19
Hickson v. Marina Associates, 743 F. Supp. 2d 362,
371 (D.N.J. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
v
Hines v. Proper, 442 F. Supp. 2d 216, 221-22
(M.D. Pa. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Johnson v. Sch. Dist. of Philadelphia, CIV. A. 06-4826,
2008 WL 3927381, at *8 (E.D. Pa. Aug. 21, 2008). . . . . . . . . . . . . . . . . . . . . . . . 33
Joyce v. Alti Am., Inc., CIV. A. 00-5420, 2001 WL
1251489, at *3 (E.D. Pa. Sept. 27, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . 18
Karr v. Lower Merion Twp., 582 F. Supp. 410, 413
(E.D. Pa. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988,
995 (Pa.1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62
Keenan v. City of Philadelphia, 983 F.2d 459, 468-69
(3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Kimberg v. Univ. of Scranton, 3:06CV1209, 2007 WL
405971, at *3 (M.D. Pa. Feb. 2, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Kline v. EDS Relocation & Assignment Services,
1:CV-08-0980, 2008 WL 4822026, at *3 (M.D. Pa.
Nov. 4, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Krochalis v. Ins. Co. of N. Am., 629 F. Supp. 1360,
1368 (E.D. Pa. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44
Landsman v. Gustin Stone Supply, Inc., 307-CV-00202,
2007 WL 2068223, *3 (M.D. Pa. July 17, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 58
Leshko v. Servis, 423 F.3d 337 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
vi
Lippay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993). . . . . . . . . . . . . . . . . 30, 32
Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50,
69-70 (D.D.C. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Marcone v. Penthouse Intern. Mag. for Men, 754 F.2d 1072 (1985).. . . . . . . . . . 47
Mary V. v. Pittsburgh Pub. Sch. Frick Middle Sch.,
9-1082, 2010 WL 562909, at *2 (W.D. Pa. Feb. 17, 2010) .. . . . . . . . . . . . . . . . . 56
Mascarini v. Quality Employment Services & Training,
1:10-CV-1546, 2011 WL 332425, at *8 (M.D. Pa.
Jan. 31, 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 62
McFadyen v. Duke Univ., 786 F. Supp. 2d 887,
965 (M.D.N.C. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 36, 50, 51
Monroe v. Pape, 365 U.S. 167, 184 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Novotny v. Great Am. Fed. Sav. & Loan Assn., 584 F.2d
1235, 1262 (3d Cir.1978), vacated on other grounds,
442 U.S. 366 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
O'Hara v. Hanley, CIV.A. 08-1393, 2011 WL 915776,
at *7 (W.D. Pa. Mar. 15, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Pansy v. Preate, 870 F. Supp. 612, 629 (M.D. Pa. 1994)
aff'd, 61 F.3d 896 (3d Cir. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) .. . . . . . . . . . . . . . . . . . 35
Petaccio v. Davis, 76 F. App.x 442, 445 (3d Cir. 2003).. . . . . . . . . . . . . . . . . . . . 28
Phillips v. County of Allegheny, 515 F.3d 224, 233
(3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 56
vii
Piazza v. CT Corp., No. 3:09-CV-1087, 2011 WL
4460621, at *8 (M.D. Pa. Sept. 26, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co.,
809 A.2d 243, 247 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Purcell v. Ewing, 560 F. Supp. 2d 337 (M.D. Pa. 2008). . . . . . . . . . . . . . . . . . . . 45
R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692,
697 (Pa. Super. Ct. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Randall v. Prince George's County, 302 F.3d 188,
202-04 (4th Cir.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Rapid Circuits, Inc. v. Sun National Bank, Civil Action
No. 10-6401, 2011 WL 1666919, at *11 (E.D.Pa.
May 3, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
Reager v. Williams, 3:08CV2035, 2009 WL 3182053,
at *5 (M.D. Pa. Sept. 25, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
Remick v. Manfredy, 238 F.3d 248, 263 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . 60
Rishell v. RR Donnelley & Sons Co., CIV.A. 06-4782,
2007 WL 1545622, at *3 (E.D. Pa. May 24, 2007) . . . . . . . . . . . . . . . . . . . . . 44, 45
Rodriguez v. Smithfield Packing Co., 338 F.3d 348,
355 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629,
638 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20
Roskos v. Sugarloaf Twp., 295 F. Supp. 2d 480,
492 (M.D. Pa. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44
viii
Rutt v. Bethlehems Globe Publishing Co., 484 A.2d 72 (1984). . . . . . . . . . . . . . . 41
S. Cross Overseas Agencies, Inc. v. Wah Kwong
Shipping Group Ltd., 181F.3d 410, 426 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . 29
Sarsfield v. Citimortgage, Inc., 707 F. Supp. 2d 546,
553 (M.D. Pa. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 58
Schmoltz v. County of Berks, CIV.A. 99-CV-1069,
2000 WL 62600, at *5 (E.D. Pa. Jan. 14, 2000) . . . . . . . . . . . . . . . . . . . . . . . 24, 61
Schneyder v. Smith, 653 F.3d 313, 323 (3d Cir. 2011).. . . . . . . . . . . . . . . 25, 30, 33
Scott v. Nw. Univ. Sch. of Law, 98 C 6614, 1999 WL
134059, at *5-*6 (N.D. Ill. Mar. 8, 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super.1997). . . . . . . . . . . . . . . . . . . . 49
Slater v. Susquehanna County, 613 F. Supp. 2d 653,
668 (M.D. Pa. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38
Speight v. Pers. Pool of Am., Inc., CIV.A. 93-2055,
1993 WL 276859, at *5 (E.D. Pa. July 20, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 47
Stambaugh’s Air Serv., Inc. v. Susquehanna Area
Regional Airport Auth., 1:00-CV-660, 2006 WL 709229,
at *5 (M.D. Pa. Mar. 16, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
Stefanowicz v. Bucknell, 10-CV-2040, 2010 WL
3938243, at *3 (M.D. Pa. Oct. 5, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 56, 64
Stokes v. Nw. Mem’l Hosp., 1989 WL 84584, at *4
(N.D. Ill. July 24, 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct.1999). . . . . . . . . . . . . . . . 52
ix
Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). . . . . . . . . . . . . . . 24, 25, 28, 30
Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa. 1997).. . . . . . . . . . . . . . . . . . 41
Other Authorities:
Restatement (2d) of Torts § 566. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
x
I.
STATEMENT OF FACTS:1
At approximately 2:00 a.m. on Sunday, September 5, 20102, K.S. initiated
“play-fighting” with R.D.3 in his dorm room, which was friendly “horsing-around.”
¶¶ 23-27. Shortly thereafter, they returned to the hallway. ¶ 40. K.S. started slapping
R.D. in the face, forcing him to grab her wrists. ¶¶ 41, 45. When R.D. released her,
she punched him in the groin. ¶¶ 45-46. R.D. gave her a “bear hug” to stop her and
K.S. then started thrashing her body around, causing them to fall. ¶¶ 47-48. Several
students witnessed this. ¶ 48. The Resident Advisor (“RA”) approached and asked
what happened. ¶¶ 49, 51. Instead of answering him, K.S. ran up and slapped R.D.
again. ¶ 51. The RA grabbed her to restrain her. ¶ 52. K.S. then started yelling,
repeatedly calling R.D. “pussy licker” and “pussy lips.” ¶ 53. The RA noticed her red
marks and that they were rug just burns from the fall. ¶ 54.
1
All paragraph citations (¶) are to the Complaint.
2
All dates in the Complaint are in 2010.
Despite repeated references R.D.’s status as a student (that he lived on
campus, paid tuition, had a contract with Bucknell, attended classes, was subject to
a student disciplinary proceeding, was suspended, was arrested twice by Bucknell
police, etc.), Bucknell claims that the Complaint never states that he is a student of
Bucknell (Bucknell Br. p. 1); to the contrary, according to the Complaint, R.D. is “a
male student at Bucknell University...” ¶ 534.
3
Later when R.D. was refilling his water pitcher, K.S. smacked him and ran
away laughing as he flicked water at her. ¶¶ 55-57. When the RA again asked her
what happened, she shouted that R.D. could suck her “big fat black cock.” ¶ 58. K.S.
then said that R.D. tackled her, and she “kicked [him] in the nuts” multiple times. ¶
59. Both K.S. and R.D. said that they were just playing around. ¶¶ 61-62, 64. The RA
asked R.D. to go to his room, but K.S. said that he could stay. ¶ 62. K.S. asked the RA
to shake her hand and promise not to file a report. ¶¶ 60, 63.
Later that night, K.S. told another student that people would see her rug burns
and realize that she had been drinking the night before a field hockey game. ¶ 68.
Ultimately, she feared that she would be kicked off of the team. ¶ 69. Later that day,
K.S. told her teammates that she banged herself on the ceiling above her loft. ¶ 70.
After the game, K.S. embellished her story, telling her coach that R.D. assaulted her.
¶¶ 72-73. K.S.’s father was at the game and took photographs of scrapes on her face,
wrist, shoulder and knee. ¶ 79.
The RA filed a report stating that K.S. slapped R.D. in the face, and that the RA
had to restrain her to stop her from hitting R.D. ¶¶ 81-82, 365, 368, 370, 373.
Everyone, including K.S., said that they had only been play-fighting. ¶¶ 369, 370,
2
373. K.S. made him “pinky swear” not to file a report. ¶¶ 370-371, 373. The RA
believed everything was fine and the fall was accidental. ¶¶ 370, 372, 373.
K.S. spoke with Dean Amy Badal and for the first time said that R.D. sexually
assaulted her. ¶ 84. Dean Badal told her to report the incident to the Bucknell
Department of Public Safety. ¶ 85. K.S. and Dean Badal met with Public Safety
Officers Julie Holtzapple, Darrell Fisher and Robert Ulmer. ¶ 87. K.S. said that R.D.
held her down and then pinched and punched her in inappropriate places. ¶¶ 88-92.
K.S. said three students witnessed him pinch and punch her in inappropriate places
and named one. ¶ 93. She said she screamed at R.D. that he would not take advantage
of her like he did Student E, telling the officers that R.D. took advantage of Student
E that summer. ¶¶ 97-98. K.S. said she repeatedly punched and smacked R.D. in the
face until she could break free and run into the hallway. ¶ 94. She said that the attack
lasted about 20 minutes. ¶ 95.
She claimed that, in the hallway, she tried to walk away but R.D. grabbed her,
tackled her and dragged her, and that she struggled on the ground with her arms
pinned behind her back. ¶¶ 99-101. She said, “while [R.D.] was on top of me, he was
getting off to it.” ¶ 102. She denied that the RA witnessed anything or asked her what
happened. ¶¶ 103-105. K.S. said some of her bruises were from field hockey and
3
pointed those out to the officers, but the officers never documented which bruises
were from field hockey. ¶ 106-107.
Holtzapple told K.S. that she was the bravest person the officer knows, that
R.D. “was born this way,” and that “you could have saved somebody’s life in the
future.” ¶¶ 108-109. Badal agreed, and said that she and K.S. had already discussed
that. ¶ 109. Fisher joined in that R.D. “obviously has a problem.” ¶ 110.
K.S. went to the hospital for a medical exam with Badal, Holtzapple and
Fisher. ¶ 111. Photos were taken. ¶ 112. The exam indicated that her skin was
“normal” with moderate bruises. ¶ 113. Overall, her condition was good. ¶ 116.
Late that night, Officers Ulmer and Jed Rishel picked R.D. up and drove him
to Public Safety. ¶ 120. R.D. gave the officers a typed up statement. ¶ 121. After
Ulmer Mirandized R.D. his Miranda rights, and R.D. told Ulmer and Fisher what
actually happened. ¶¶ 122-123. The report from this interview misrepresents what
R.D. said and instead adopts portions of K.S.’s interview. ¶ 124.
On Sunday, September 5 and Monday, September 6 (Labor Day), the Bucknell
police obtained written and oral statements from at least 8 witnesses. ¶ 125. The RA
also gave the officers his report. ¶ 373. The witnesses refuted K.S.’s story and
supported R.D.’s statement that they were just “play-fighting.” ¶¶ 127-128. In fact,
4
the witnesses generally named K.S. as the aggressor. ¶ 128.4 The students informed
the officers that they only observed friendly play-wrestling and that it was not sexual.
¶¶ 223, 230, 317, 319-21, 324, 327-328, 331, 343-344, 351, 358-360. No student
witnessed R.D. make any sexual advances, hit her in the head or vagina, call her any
derogatory names or engage in any other questionable behavior. ¶¶ 325-327, 329,
343, 384, 392-393. Students standing outside R.D.’s room told the officers that they
did not hear K.S. scream “stop,” “get off me,” or anything about assaulting Student
E. ¶¶ 333, 343, 345-346, 351, 386, 388. Students said that, if someone had been
screaming, they would have heard it and come in to help. ¶ 332, 334, 343, 345-346,
351.
Students said that, when R.D. and K.S. returned to the hall, they were still
joking and laughing. ¶¶ 224, 231, 347, 351. The students explained that there was no
reason to believe anything improper had taken place, and K.S. had no bruising or
marks on her body when she left R.D.’s room. ¶¶ 335, 343, 348, 351, 387. Students
recalled that, R.D. tried to stop play-fighting, but K.S. started repeatedly slapping him
in the face. ¶¶ 225, 236, 241, 337-338, 343, 349, 351. Students told the officers that
the fall that led to K.S.’s rug burn was simply a “loss of balance” resulting from K.S.
4
391.
After one student filled out a witness report, K.S. kept apologizing to him. ¶
5
flailing around and still trying to hit him as R.D. tried to stop her. ¶¶ 226, 340, 343.
They also said that K.S. kept calling R.D. names, such as “pussy lips”. ¶¶ 341, 343.
Students said that, after the fall, R.D. flicked water at K.S., and then K.S. laughed and
ran down the hall to her room. ¶¶ 227, 342-343.
The students recalled that the RA did ask what happened. ¶ 228. K.S. assured
him that everything was friendly in nature. ¶ 228. The students said that the RA
stopped K.S. “with some effort,” but she stayed at R.D.’s door trying to call him back
into the hallway. ¶ 237. One student told the officers that K.S. was afraid that her
coach would see her rug burn and kick her off the team for drinking. ¶¶ 355-356, 360.
Student E refuted everything K.S. said about her, saying that R.D. never assaulted her
or took advantage of her. ¶¶ 242, 361, 363.
Monday evening, when R.D. asked for a copy of his statement, Officer Ulmer
told him that he could not have a copy because K.S. had not pressed charges even
thought she had requested the filing of criminal charges. ¶¶ 135-137. K.S. had also
just given the officers a written statement, accusing R.D. of saying she “wanted to”
and was “a huge bitch for resisting.” ¶¶ 140-141. She said that she told him to “stop”
and “leave me alone” a thousand times. ¶ 142.
6
Officers Ulmer and James Middleton drafted criminal charges against R.D. for
assault, harassment and disorderly conduct. ¶¶ 144-145, 315-316. Officer Holtzapple
was not part of the drafting, but swore out and signed the Affidavit of Probable
Cause. ¶¶ 145, 312. Jason Friedberg, Chief of Public Safety, reviewed the charges
with Bucknell’s General Counsel Wayne Bromfield. ¶ 14, 146.
At around 5:45 p.m., Deans Linda Locher and Lewis Marrara informed R.D.
that he was being temporarily suspended based on a review of the evidence and gave
him a written suspension order. ¶ 148-149. R.D.’s mother, Shelley, called Dean
Locher, but Locher refused to talk about the incident. ¶¶ 154-155. Locher said that
R.D. was better off at home as he dealt what happened in Smith Hal, that “R.D. must
have a lot bottled up inside,” and that he is “holding a lot in.” ¶¶ 156-157. When
Shelley expressed concern about R.D. missing up to a month of school, Dean Locher
said that there was nothing she could do. ¶ 158. Locher did not indicate the
seriousness of K.S.’s allegations or that officers were filing criminal charges. ¶ 160.
R.D. stayed at a hotel Monday night. ¶ 161.
On Tuesday, September 7, R.D.’s parents John and Shelley and R.D.’s attorney
Steve Becker met with Public Safety Captain Douglas Lauver and Deans Locher,
Marrara and Badal. ¶ 163. Locher told them not to talk to any witnesses even though
7
K.S.’s father had already done so. ¶¶ 126, 165-166. Captain Lauver said that Chief
Friedberg had the witness statements, but that the statements could not be released
because they were still being prepared. ¶¶ 168-170. Dean Locher assured them that
the statements would be produced in a couple of days. ¶ 171. At no time did Dean
Badal mention that she facilitated the initial investigation, attended K.S.’s interview
and participated in the decision to suspend R.D. ¶ 172. That day, Bucknell police
filed the criminal charges. ¶ 173. R.D. was arrested, arraigned and fingerprinted. ¶¶
174-175, 439.
Thursday morning (September 9), Dean Marrara told R.D. that his suspension
was rescinded. ¶ 176. Dean Daniel Remley returned R.D.’s student ID and provided
a key for a dorm room. ¶¶ 184, 187. Remley also assured R.D. and his mother Shelley
that everything was fine. ¶ 187.
Meanwhile, K.S.’s father and her attorney, Anthony J. Voci, Jr., met with
Bucknell’s President John Bravman and General Counsel Bromfield. ¶ 188. At about
7:14 p.m., K.S. went with Voci to Public Safety to give a statement to DetectiveSergeant Jeffrey Ettinger. ¶¶ 20, 196-197.5 She exaggerated her story even more in
Earlier that day, Ettinger left R.D. a voicemail, asking him to call back and
that there was no need for an attorney. ¶ 179. Ettinger knew R.D. had an attorney but
was calling him about the criminal investigation anyway. ¶¶ 181-182.
5
8
this interview and claimed that over the past year, R.D. repeatedly called her
derogatory names, hit her in the vaginal area and was generally inappropriate. ¶ 199.
She said that most students could verify her story. ¶ 200.
She stated that on September 5, he started to “jokingly horse play”, but she
immediately told him to stop. ¶ 201. She said that, in the presence of other people,
started “punching me inappropriately.” ¶ 202. She told the detective, “it was just like
him pummeling me, and you know, punching me as hard as he could in my vagina,
and him getting aroused by it.” ¶ 206. In addition, K.S. stated that R.D. had
previously sexually assaulted her roommate, Student E, and that Student E “despises”
him. ¶ 207-208. K.S. told Detective Ettinger that she started fighting back and
screamed, “Stop!,” “Get off me!,” “No!,” and “You did this to [Student E], you’re not
going to do it to me!” ¶ 209. K.S. said she got away, but he chased her into the hall.
¶ 210. She said he became angry, grabbed her arms, and tackled her. ¶ 211. She
claimed that the attack lasted 5 to 7 minutes. ¶ 213. K.S. said several people
witnessed the incident and would support her story, specifically naming four. ¶ 220.
However, these witnesses had already provided statements to Bucknell police that
actually refuted K.S. story and supported R.D. ¶¶ 221-222.
9
When Detective Ettinger asked if she was concerned, K.S. said R.D. made her
feel unsafe and scared. ¶¶ 214, 219. Ettinger asked what she wanted Bucknell to do
to R.D., and she said Bucknell should expel him. ¶¶ 215-216. Ettinger then asked
“what else,” and she said she wanted R.D. to “have a record.” ¶¶ 217-218.
Around 9:00 p.m., Officer Holtzapple and an unknown officer came to R.D.’s
room and said that he was trespassing and had to leave immediately. ¶ 244-245, 247.
He told them that Dean Remley gave him permission to be on campus and showed
them his new room key and student ID as proof that his suspension was lifted, but
they ignored him. ¶¶ 251-252. R.D. called his mother Shelley to tell her, and she
became extremely emotional. ¶¶ 248-249. She told him to call his attorney, but did
not have time to before the officers made him sign a document and leave. ¶¶ 246,
250.6 They led him out of his room and put him in the back of a Public Safety vehicle.
¶ 253. Because R.D. did not have a place to stay, they left him alone at a local park
and drove off. ¶ 255. He tried calling his mother, but Shelley was too distraught to
even drive a car and come and find him. ¶ 256. Eventually, he reached a friend who
took him to his mother. ¶ 257.
6
Despite several requests, a copy was never provided. ¶ 246.
10
Because R.D. did not have any place to stay, the officers dropped him off at a
local park and left him there alone. ¶ 255. He tried calling his mother, who was
staying about 30 minutes away with family friends, but Shelley was too emotionally
distraught to even drive a car and come and find him. ¶ 256. Eventually, he reached
a friend who took him to his mother. ¶ 257.
On Friday (September 10), Office Holtzapple filed a new criminal complaint,
adding charges for false imprisonment, indecent assault. ¶ 258. Bucknell police
arrested R.D. and had him arraigned again. ¶¶ 259-260, 439.
On September 14, K.S. filed student misconduct charges against R.D. for, inter
alia, sexual misconduct, assault, harassment and disorderly conduct. ¶ 265. R.D.’s
father John and Attorney Becker pointed out to President Bravman and General
Counsel Bromfield that the witness statements refuted K.S. and that her statements
were extremely inconsistent. ¶¶ 271-272. R.D. filed student conduct charges against
K.S. on September 15 for, inter alia, sexual misconduct, assault, harassment and a
false accusation. ¶ 266. Dean Conrad notified R.D. and K.S. of the charges and
Bucknell’s hearing procedures. ¶¶ 267-268. Conrad said they would receive all
relevant documents before the hearing. ¶ 269.
11
In a conference call with Attorneys Becker and Voci, General Counsel
Bromfield asked Voci if he had any objection to R.D. returning to campus. ¶¶ 274275. Voci insisted that Bucknell not allow him to return even with an armed escort.
¶¶ 276-278. Voci repeatedly referred to R.D. as a dangerous sex offender. ¶ 279. As
a result of the call, Bucknell did not permit R.D. back on campus. ¶ 283.
On September 23, Dean Conrad sent a letter with witness statements and other
materials to Attorney Becker. ¶ 287. The letter reiterated hearing procedures,
requiring R.D. and K.S. to provide a witness and exhibit list. ¶ 288. Attorney Becker
responded, requesting the officers’ notes and statements from interviews; reports and
notes related to R.D.’s removal; notes from any contact with K.S., her parents, and
Attorney Voci.; the medical report; notes and reports from K.S.’s statements to Dean
Badal; and any exculpatory evidence. ¶ 289.
On October 2, K.S. filed a motion in this Court to enjoin Bucknell’s hearing
until after the criminal preliminary hearing, which this Court denied October 5. ¶¶
300-301. The sexual misconduct hearing took place on October 5-7. ¶ 302.
Dean Conrad served as the Student Conduct Administrator (“SCA”) for R.D.’s
hearing. The SCA’s responsibilities include, inter alia, keeping records of
proceedings and advising the Hearing Board on procedures. ¶ 303.
12
K.S. refused to answer any questions from the Board or R.D. ¶ 305.7 She did
not submit a witness list or any other materials before the hearing as required. ¶ 306.
Over R.D.’s objection, K.S. was permitted to submit photographs. ¶¶ 307-308. R.D.
had requested to see the photographs prior to the hearing but the pictures were never
produced. ¶ 308. R.D. also objected to the Board reviewing K.S.’s prior statement
because he could not cross-examine her. ¶ 309.
Officer Holtzapple revealed that an audio recording of K.S.’s interview was not
given to R.D. despite his request. ¶ 313. When asked whether she ever thought K.S.
was lying, Holtzapple hesitated and then simply said that her main responsibility was
to protect K.S. ¶ 314. R.D., the other student witnesses and the RA denied K.S.’s
allegations and told the Board what actually happened. ¶¶ 319, 321, 327, 343, 351,
360, 363, 370, 373, 376-382. R.D. made multiple motions to dismiss the charges
because K.S. refused to answer any questions and failed to present evidence, but his
motions were denied. ¶¶ 394, 396-397.
The Board found both R.D. and K.S. responsible for Disorderly Conduct but
not for the other charges. ¶¶ 398-399, 403-404. The Board never stated a factual basis
for its finding. ¶ 401. After the hearing, Officer Ulmer said, “I always knew this was
When asked by the Board, K.S. said that she did not have her vagina checked
at the hospital, but then requested to withdraw her answer. ¶¶ 375-376.
7
13
just a disorderly conduct matter.” ¶ 408. As a result, R.D. was forced to change his
on-campus residence. ¶ 406. Bucknell also issued a formal letter of censure detailing
its decision that R.D. committed disorderly conduct. ¶ 407.
On October 14, R.D. notified Dean Conrad that he wanted to appeal and
requesting a copy of the hearing audio for his appeal. ¶ 409. At the appellate hearing
on October 20, Dean Conrad, acting as SCA, failed to produce the hearing audio tape.
¶ 411. Bucknell also refused to record the appellate hearing, in violation of the
Student Handbook, the Faculty Handbook and the 1967 Joint Statement on Rights
and Freedom of Students—endorsed by the Faculty and the Board of Trustees. ¶ 412.
Conrad falsely told the Appeals Board that, during the initial hearing, R.D. made only
one motion to dismiss his charges. ¶ 413. Conrad repeatedly said that the Board
hearing was a long, drawn-out process, thus misrepresenting that sufficient evidence
was presented. ¶ 414. Conrad did not tell the Appeals Board that K.S. failed to
present any witnesses and refused to answer any questions. ¶ 415. The Appeals Board
rejected R.D.’s appeal. ¶ 416.
On October 27, R.D. notified Dean Locher that he wanted a final appeal due
to the procedural errors, including the failure to provide him with exculpatory
evidence and finding him responsible when K.S. did not present evidence or testify.
14
¶¶ 417-418. He also noted that during his appellate hearing, Dean Conrad failed to
produce the original hearing’s audio tape and misrepresented what took place at that
hearing. ¶ 419. On November 15, Locher recused herself due to “[her] office’s role
in the prior history of this matter,” ¶ 421, and referred the appeal to Provost Mick
Smyer. ¶ 422. On December 1, R.D. emailed Smyer to request the original hearing’s
audio tape, and that the final hearing be recorded. ¶ 423. Smyer denied the requests.
¶¶ 424, 426. At the final hearing on December 6, R.D.’s advisor argued that the
evidence was insufficient because K.S. did not testify. ¶ 429. On December 14, the
appeal was denied. ¶ 430.
Ultimately, the prosecutors dismissed R.D.’s charges. ¶ 446. As a result of his
criminal prosecution and finding of responsibility in the sexual misconduct hearing,
R.D. was seriously harmed. ¶¶ 527, 535, 544. He was suspended from Bucknell, and
incurred attorneys fees and other costs associated with his defense. ¶¶ 442, 449, 469,
476, 522, 551, 560, 573. R.D. also suffered the loss of his educational payments made
for the time frame that he could not attend class or live on campus. ¶ 540. In addition,
R.D. suffered physical and psychological harm, pain and suffering. ¶¶ 441, 448, 470,
477, 515, 523, 561, 574.
15
II.
ARGUMENT:8
A.
Standard of Review:
In ruling on a motion to dismiss, “courts accept all factual allegations as true,
construe the complaint in the light most favorable to the plaintiff, and determine
whether, under any reasonable reading of the complaint, the plaintiff may be entitled
to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation
omitted). While claims in the complaint must be “plausible”, “a complaint may not
be dismissed merely because it appears unlikely that the plaintiff can prove those
facts or will ultimately prevail on the merits.” Id. (citing Bell Atlantic Corp. v.
Twombly, 127 S.Ct. 1955, 1964-65, 1969 n. 8 (2007)).
Shortly after the Supreme Court reaffirmed its Twombly holding in Ashcroft v.
Iqbal, 556 U.S. 662 (2009), the Third Circuit clarified the federal pleading standard.
In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), a district court found
that a plaintiff failed to sufficiently plead disability after determining that her
restriction to sedentary work could not legally constitute a disability. Id. at 212-13.
However, the Third Circuit reversed because the “the District Court should have
focused on... whether Fowler pleaded she is an individual with a disability. The
Plaintiffs do not oppose the dismissal of Remley and Rishel who are listed
in the caption but not in any counts.
8
16
District Court... instead focused on what Fowler can ‘prove’... Even post-Twombly,
it has been noted that a plaintiff need only put forth allegations that raise a reasonable
expectation that discovery will reveal evidence of the necessary element.” Id. at 21314 (emphasis in original).
B.
Bucknell’s police officers violated R.D.’s Fourth Amendment rights
when they arrested him without probable cause.9
1.
The arrest and charging of R.D. was clearly state action.
While Bucknell is a private institution, its police officers have full police
power. Their actions in arresting and charging R.D. with criminal charges clearly
constituted state action, and are subject to constitutional restriction.
Bucknell cites this Court’s Stefanowicz v. Bucknell decision which referenced
Bucknell as a “private entity”. 10-CV-2040, 2010 WL 3938243, at *3 (M.D. Pa. Oct.
5, 2010). A private party is a “state actor” under Section 1983 if he or she “exercise[s]
Bucknell appears to argue that R.D. may have waived his claims due to his
opposition to K.S.’s Motion for a Preliminary Injunction. They cite his expressed
desire “to have a timely hearing... to clear his name...” Bucknell Br. p. 9. R.D.’s desire
to quickly prove his innocence was no concession that his charges were proper. R.D.,
at the time, presumed that Bucknell would provide him due process in a hearing. In
any event, there is no “change of heart” waiver doctrine, and Bucknell does not cite
any legal authority to develop such a claim. If Bucknell develops this claim in its
Reply, Plaintiffs would seek leave to file a Sur-Reply.
9
17
powers that are traditionally the exclusive prerogative of the state”. 2010 WL
3938243, at *2-*3 (quoting Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)). “The
inquiry is fact-specific.” Id.
Applying that test to a misconduct hearing, this Court found in Stefanowicz that
the student misconduct hearing was “strictly an internal investigation.” Id. at *3. The
Court specifically noted that K.S. was not arrested. Id. at n. 2. R.D., on the other hand,
was arrested by campus police. His arrest was clearly state action. Unlike a student
disciplinary hearing, “plenary arrest power... is a power traditionally reserved to the
state alone.” Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 638 (6th Cir. 2005).
See also Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir. 2003) (an
arrest is “the function most commonly associated with the police”) (quoting Foley v.
Connelie, 435 U.S. 291, 297 (1978)). In other words, a private party is a state actor
“when the state gives a private party exactly the same powers as the police...” Stokes
v. Nw. Mem’l Hosp., 1989 WL 84584, at *4 (N.D. Ill. July 24, 1989). See DeCarlo
v. Joseph Horne & Co., 251 F. Supp. 935, 937 (W.D. Pa. 1966) (arrest by store
detective state action). Bucknell is a state-aided university, ¶ 435, that requested and
received authorization for its police officers to act with all the power of a municipal
police department. ¶ 451. Bucknell public safety officers are appointed and sworn
18
police officers under 22 P.S. § 501. ¶ 434.10 Section 501(a) allows non-profit
corporations to apply for and receive appointment of their employees “to act as
policemen for the corporation.” Under § 501(c), these policemen “possess and
exercise all the powers of a police officer in this Commonwealth, in and upon, and
in the immediate and adjacent vicinity of, the property of the corporation...”
In addition, 71 P.S. § 646 provides full police power authority to, inter alia,
campus police at all state-aided universities. 71 P.S. § 646.1(a) also specifically
provides campus police full police power. Under these statutes, Pennsylvania courts
have recognized that campus police have full police power. See Flagg v. State Sys.
of Higher Educ., 904 A.2d 1004, 1008 n. 3 (Pa. Commw. Ct. 2006).
It is clear that Bucknell’s police officers acted with Pennsylvania’s authority
when they arrested and charged R.D. Indeed, in the case of Henderson v. Fisher, 631
F.2d 1115, 1118 (3d Cir. 1980), the Third Circuit addressed state action under § 646
regarding the University of Pittsburgh police and held that the statute “delegated to
the campus police of the University of Pittsburgh the very powers which the
Bucknell argues that these allegations are “conclusory”; they are not. These
allegations are factual: (1) it receives state funds, (2) it applied for and received
permission to have police power, and (3) its police officers are appointed and sworn.
These allegations are further corroborated by the fact that Bucknell officers in this
case used this very police power to arrest and charge R.D.
10
19
municipal police force of Pittsburgh possesses.” Id. at 1118. It continued, “the
delegation of police powers, a government function, to the campus police buttresses
the conclusion that the campus police act under color of state authority.” Id. at 1119.
Henderson is controlling in this case, and Bucknell’s police act under the color of law
just as the University of Pittsburgh police.
Bucknell acted as the government to arrest R.D.–the clearest sign of police
power, and it cannot now hide from constitutional limitations on government abuses.
See also Romanski, 428 F.3d at 638 (“One consequence of Brown’s possession of this
authority, the authority to make arrests at one’s discretion and for any offenses, is
clear: at all times relevant to this case, Brown was a state actor as a matter of law.”).
“It would be hard to imagine... a more prototypically representative government
function than [Bucknell’s] use of [its] official capacity to effectuate the arrest of
[R.D.]” Rodriguez, 338 F.3d at 355.
Because the Bucknell police are vested with almost identical powers to
municipal police, they exercise functions that are traditionally the exclusive
prerogative of the state. Courts have on numerous occasions found similar campus
police to be state actors. See e.g., Boyle v. Torres, 756 F. Supp. 2d 983, 995 (N.D. Ill.
2010) (University of Chicago Police); Maniaci v. Georgetown Univ., 510 F. Supp. 2d
20
50, 69-70 (D.D.C. 2007) (Georgetown University Police); Scott v. Nw. Univ. Sch. of
Law, 98 C 6614, 1999 WL 134059, at *5-*6 (N.D. Ill. Mar. 8, 1999) (Northwestern
University police).
Bucknell relies on Kach, where the Third Circuit held that “a
privately-employed school security guard” was not performing an exclusive
government function. 589 F.3d at 647-48.11 The Court rejected Kach’s argument that
the security guard was “imbued with all the powers of a state police officer.” Id. at
647 n. 21. The guard could only patrol the school, check for hall passes, escort
students to the principal and prevent disturbances. Id. The Third Circuit also limited
its holding to the facts before it: “We do not foreclose the possibility that, under other
circumstances, a private security guard employed in a public school could qualify as
a state actor.” Id. at 649 n. 22. Bucknell’s reliance on Kach is misplaced. Unlike in
that case, Bucknell police officers have full police power, and unlike in that case, the
Leshko v. Servis, cited by Bucknell, is easily distinguishable. 423 F.3d 337
(3d Cir. 2005). Leshko, 423 F.3d at 342, held that foster parents “more closely
resemble” a private nursing home than public officials, distinguishing Monroe v.
Pape, 365 U.S. 167, 184 (1961) (police officers). Leshko, 423 F.3d at 342.
11
21
challenged action (an arrest) is an exclusive state function. If it were not, it would be
hard to imagine what would be.12
Bucknell consistently acted with the authority of the state—from the custodial
interrogation where R.D. was Mirandized, ¶¶ 120-123, to forcibly removing him from
campus and making him sign a document (that he still has not received a copy of), ¶¶
244-253, to arresting him twice, ¶ 439. Bucknell’s officers acted as the state and are
subject to the constitutional limitations on state power.
2.
Plaintiffs have alleged each officers’ involvement.
The Complaint clearly alleges the personal involvement of each officer.
Accepting the Complaint’s allegations as true, Officers Holtzapple, Fisher and Ulmer
and Detective Ettinger all interviewed K.S. ¶¶ 87, 196. In his interview, Ettinger
asked K.S. what she wanted and she said for “have a record.” ¶¶ 217-218. Holtzapple
and Fisher went with her to the hospital for the medical exam. ¶ 111. Officers Ulmer
and Middleton drafted the criminal charges and Affidavit of Probable Cause, which
Holtzapple swore out and signed as true. ¶ 145. Ulmer and Fisher interviewed R.D.
Bucknell notes that its police are subject to jurisdictional limitations.
Bucknell Br. p. 14 n. 11. The officers have this in common with every police officer,
and it is telling that they can point to no other limitation on their authority.
12
22
¶ 122. Holtzapple and Doe forcibly removed R.D. from campus in a police car. ¶¶
244-55. Holtzapple filed a second complaint against R.D. with additional charges. ¶
258. Detective Ettinger and Officers Holtzapple, Ulmer, Middleton and Fisher
arrested R.D. twice without probable cause. ¶ 439.13
The public safety officers knew that the information upon which they based the
arrest was false. ¶ 436. Ulmer later admitted, “I always knew this was just a disorderly
conduct matter.” ¶ 408. When asked at the sexual misconduct hearing whether she
ever thought K.S. was lying, Holtzapple hesitated and then simply said that her main
responsibility was to protect K.S. ¶ 314. In order to obtain the arrest warrants, the
officers intentionally omitted exculpatory information that would have negated any
perceived probable cause. ¶¶ 437, 440.14
Disregarding these allegations, Bucknell claims that the Complaint fails to
allege that R.D. was arrested by a Bucknell police officer, Bucknell Br. p. 5 n. 6. This
Court must accept the facts in the Complaint. Bucknell claims that this is a “bald
assertion,” apparently contending that the lengthy Complaint needs to allege more
details of each officers’ involvement. See Bucknell Br. p. 19 n. 14. Plaintiffs have
extensively pled facts (despite a notice pleading standard), and this Court should not
throw out police officers that were obviously involved in charging R.D.
13
Bucknell claims that Fisher only interviewed R.D., and Ettinger only left
him a voicemail. However, Plaintiffs have pled the officers’ investigative
involvement and in overlooking exculpatory evidence to obtain the arrest warrant.
Bucknell concedes, as it must, that Ulmer and Middleton typed up R.D.’s charges, but
claims that this function was akin to “any administrative assistant.” Bucknell Br. p.
19. While Plaintiffs concede that administrative assistants can type, there is
14
23
These allegations are sufficient at the pleading stage to show each officers’
involvement in falsely obtaining R.D.’s arrest warrant and in his malicious
prosecution. Accordingly, dismissal is improper. Schmoltz v. County of Berks, CIV.A.
99-CV-1069, 2000 WL 62600, at *5 (E.D. Pa. Jan. 14, 2000) (denying dismissal of
investigative officers where they aided in the arrest by, inter alia, ignoring
exculpatory evidence).
3.
The officers arrested R.D. without probable cause.
Accepting the allegations in the Complaint as true, the Bucknell police knew
of the overwhelming exculpatory evidence refuting K.S.’s allegations, but ignored it.
Despite the testimony of several witnesses showing her story to be false, they arrested
R.D. anyway, added some charges and then arrested him again.
An arrest violates the Fourth Amendment unless the officer has probable cause,
which “exists if there is a ‘fair probability’ that the person committed the crime at
issue.” Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). Here, there was no “fair
probability” of R.D.’s guilt because every witness refuted K.S.’s allegations.
significance to what was drafted. Plaintiffs simply need to demonstrate the officers’
participation in his arrest and prosecution, and this clearly suffices.
24
Bucknell argues that exculpatory evidence is irrelevant, but it is wrong. “An
officer contemplating an arrest is not free to disregard plainly exculpatory evidence,
even if substantial inculpatory evidence (standing by itself) suggests that probable
cause exists.” Id. at 790 (citation omitted). The Third Circuit has explained,
“Independent exculpatory evidence or substantial evidence of the witness’s own
unreliability that is known by the arresting officers could outweigh the identification
such that probable cause would not exist.” Id. Thus, an officer can only rely on
“reasonably trustworthy” witnesses. Schneyder v. Smith, 653 F.3d 313, 323 (3d Cir.
2011). K.S.’s story was so contradicted by the other witnesses that no reasonable
officer would have believed her.
An officer also violates the Fourth Amendment in drafting an affidavit of
probable cause if he (1) “knowingly and deliberately, or with a reckless disregard for
the truth, made false statements or omissions that create a falsehood in applying for
a warrant; and (2) ...such statements or omissions are material, or necessary, to the
finding of probable cause.” Wilson, 212 F.3d at 786-87. “An assertion is made with
reckless disregard when viewing all the evidence, the affiant must have entertained
serious doubts as to the truth of his statements or had obvious reasons to doubt the
accuracy of the information he reported.” Id. at 788.
25
Here, the contradictory evidence was substantial: the officers interviewed
numerous witnesses that refuted K.S., and her allegations were continually changing
and inconsistent. The statements from at least 8 witnesses, including witnesses K.S.
specifically identified to the officers as supporting witnesses, all refuted K.S. story
and supported R.D.’s statement that they were just “play-fighting.” ¶¶ 125-128, 221222.. In fact, the witnesses generally named K.S. as the aggressor. ¶ 128. For
example, K.S. named four individuals that she claimed saw R.D. pinch and punch her
in inappropriate places. ¶¶ 88-93, 202, 220. These students (and every other student)
informed the officers that they only observed friendly play-wrestling and that it was
not sexual. ¶¶ 223, 230, 317, 319-21, 324, 327-328, 331, 343-344, 351, 358-360. In
fact, no student witnessed R.D. make any sexual advances, hit her in the head or
vagina, call her any derogatory names or engage in any other questionable behavior.
¶¶ 325-327, 329, 343, 384, 392-393.
Contrary to K.S.’s allegation that she was yelling at R.D. in his room, ¶¶ 142,
209, students standing outside R.D.’s room did not hear anything of the sort. ¶¶ 333,
343, 345-346, 351, 386, 388. Students said that, when R.D. and K.S. returned to the
hall, they were still joking and laughing. ¶¶ 224, 231, 347, 351. The students
26
explained that there was no reason to believe anything improper had taken place, and
K.S. had no marks on her when she left R.D.’s room. ¶¶ 335, 343, 348, 351, 387.
She claimed that R.D. tackled her while she was trying to leave, ¶¶ 99-101,
211, but the witnesses recalled that R.D. tried to stop play-fighting, and K.S. started
repeatedly slapping him in the face. ¶¶ 225, 236, 241, 337-338, 343, 349, 351.
Students told the officers that the fall that led to K.S.’s rug burn was simply a “loss
of balance” resulting from K.S. flailing around and still trying to hit him as R.D. tried
to stop her. ¶¶ 226, 340, 343.
They also said K.S. kept calling R.D.“pussy lips”. ¶¶ 341, 343. Later on, after
the fall, R.D. flicked water at K.S., and then K.S. laughed and ran down the hall to her
room. ¶¶ 227, 342-343. Clearly not the actions of a victim of a sexual assault.
She denied that the RA asked her what happened, but the other students
remembered that he did. ¶¶ 103-105, 228. The RA’s report and students indicated that
K.S. slapped R.D. in the face, and that she had to be restrained. ¶¶ 81-82, 237, 365,
368, 370, 373. K.S. made him “pinky swear” not to file a report. ¶¶ 370-371, 373.
Her statements were inconsistent as well. She told the RA that they were just
playing. ¶ 228, 369, 370, 373. One student told the officers that K.S. said she was
afraid that her coach would see her rug burn and kick her off the team for drinking.
27
¶¶ 355-356, 360. In the first police interview, she said the attack lasted 20 minutes,
but she said 5-7 minutes in the second interview. ¶¶ 95, 213. Additionally, she also
told the officers that R.D. sexually assaulted Student E that summer, ¶¶ 97-98, 207,
which Student E denied to the officers. ¶¶ 242, 361, 363.
Under the circumstances, K.S. completely lacked credibility to support
probable cause. As the Western District explained in a similar case, “While the
accusation of SB, and in particular the content of the forensic interview appear
compelling, there is a substantial amount of contradictory evidence that was available
to Hanley that was not contained in the affidavit of probable cause.” O'Hara v.
Hanley, CIV.A. 08-1393, 2011 WL 915776, at *7 (W.D. Pa. Mar. 15, 2011) (denying
summary judgment to officer).
As in Wilson, the cases cited by Bucknell are easily distinguishable as they
“fall into two basic camps: (1) those in which there was no exculpatory evidence or
evidence of witness unreliability...; and (2) those in which the court concluded that
a positive identification was not fatally undermined by unreliability or exculpatory
evidence...” Wilson, 212 F.3d at 790. Cf. Petaccio v. Davis, 76 F. App.x 442, 445 (3d
Cir. 2003) (“There were no allegations that the identifications were falsified,
dishonest, biased or prejudicial...”); Piazza v. CT Corp., No. 3:09-CV-1087, 2011 WL
28
4460621, at *8 (M.D. Pa. Sept. 26, 2011) (“[P]robable cause was based on his
first-hand knowledge obtained through objective video evidence and plaintiff's
incriminatory statements.”); Hickson v. Marina Associates, 743 F. Supp. 2d 362, 371
(D.N.J. 2010) (no exculpatory evidence); Hines v. Proper, 442 F. Supp. 2d 216, 22122 (M.D. Pa. 2006) (Kane, J.) (“[T]here are no allegations that the arrest warrant was
invalid for want of probable cause or that Defendants lied to obtain the warrant”).15
Viewing the facts in the light most favorable to Plaintiffs, unlike in those cases,
the exculpatory witness statements rendered K.S. not credible. Accordingly, the
officers violated R.D.’s rights when they arrested him without probable cause and
omitted the witnesses’ statements from their affidavit of probable cause to arrest.
4.
No reasonable officer would have believed K.S.
Accepting the allegations in the Complaint as true, any reasonably competent
officer would have known that the overwhelming evidence refused K.S.’s claims.
Bucknell claims that this Court can consider the attached photographs, citing
S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181
F.3d 410, 426 (3d Cir. 1999). That case held, “we may take judicial notice of another
court's opinion-not for the truth of the facts recited therein, but for the existence of
the opinion, which is not subject to reasonable dispute over its authenticity.” Unlike
S. Cross, (1) the photos are not a judicial opinion, (2) Bucknell is asking the Court
to accept the truth of the photos, and (3) the photos are disputed as R.D. denies
harming her, and K.S. said some marks came from field hockey, not R.D. ¶¶ 106-07.
15
29
“The doctrine of 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.’”
Schneyder, 653 F.3d at 318. Of course, the right to be free from arrest except on
probable cause was clearly established at the time of R.D.’s arrests. Wilson, 212 F.3d
at 790. As was the officers’ obligation to consider exculpatory evidence. Id. at 789.
See Lippay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) (“If a police officer
submits an affidavit containing statements he knows to be false . . . , the officer
obviously failed to observe a right that was clearly established.”).
In the “Duke Lacrosse” case, the Middle District of North Carolina held, “a
reasonable police officer would have known that it would violate clearly established
constitutional law to deliberately or recklessly present false or misleading evidence
to obtain an order and effect a search or seizure without probable cause.” McFadyen
v. Duke Univ., 786 F. Supp. 2d 887, 965 (M.D.N.C. 2011). The Court continued,
“there can be no question that the Constitution is violated when government officials
deliberately fabricate evidence and use that evidence against a citizen...” Id. at 1015.
As in McFadyen, (viewing the facts in favor of Plaintiffs) a reasonable officer would
30
have known that K.S. lacked credibility, that probable cause did not exist and not to
omit exculpatory evidence from the affidavit of probable cause.
C.
The officers violated R.D.’s Fourth Amendment rights when they
prosecuted him without probable cause.
The officers also violated R.D.’s Fourth Amendment rights when they
prosecuted him without probable cause. As explained above, any reasonable officer
would have known that—viewing the facts in the light most favorable to
Plaintiffs—K.S. lacked credibility as every witness refuted her account.
The elements of a malicious prosecution claim are as follows: “(1) the
defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the
plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the
defendants acted maliciously or for a purpose other than bringing the plaintiff to
justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding.” DiBella v. Borough of
Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). Here, the officers (1) charged R.D.,
(2) the prosecutors dropped the charges, (3) the officers lacked probable cause, (4)
the officers maliciously acted knowing the overwhelming evidence supported R.D.’s
innocence, and (5) R.D. was subjected to two arrests, booked and arraigned.
31
Accepting the allegations in the Complaint as true, Officers Holtzapple, Ulmer,
Middleton and Fisher and Detective Ettinger submitted an Affidavit of Probable
Cause containing false information to the District Justice in an effort to initiate
criminal proceedings against R.D. ¶ 444. The officers also provided knowingly false
information to the prosecutors to advance the criminal case. ¶ 445. The officers failed
to bring exculpatory and contradictory evidence to the prosecutors’ attention as such
evidence surfaced. ¶ 445. The officers willfully and maliciously assisted in the
prosecution of R.D. knowing that they did not have probable cause and that the
overwhelming evidence pointed toward his innocence. ¶ 447.
This conduct is sufficient to demonstrate malice. “Malice” has been defined as
“ill will in the sense of spite, lack of belief by the actor himself in the propriety of the
prosecution, or its use for an extraneous improper purpose.” Lippay, 996 F.2d at 1502
(3d Cir. 1993) (citation omitted). “Malice may be inferred from the absence of
probable cause.” Id. Malice can also be shown by a reckless disregard for the
plaintiff’s rights. Id. at 1503. As explained above, the officers lacked probable cause.
Officer Ulmer also lied about whether K.S. had pressed charges in order to withhold
evidence. ¶¶ 135-137. They submitted an arrest application in reckless disregard to
R.D., even adding charges for a second arrest after every witness refuted K.S.
32
Bucknell argues that R.D. was not seized. “When the state places
constitutionally significant restrictions on a person's freedom of movement for the
purpose of obtaining his presence at a judicial proceeding, that person has been seized
within the meaning of the Fourth Amendment.” Schneyder, 653 F.3d at 321-22. Here,
R.D.’s freedom of movement was restrained when he was arrested and arraigned.
Bucknell cites Bryant v. Vernoski, No. 11-263, 2011 WL 4400820, at *4-*5
(M.D. Pa. Sept. 1, 2011), but Bryant is easily distinguishable as in that case there was
no arrest. Id. Bryant also relied on DiBella, 407 F.3d at 603, another case where there
was no arrest. R.D. was arrested twice. This case is more like Johnson v. Sch. Dist.
of Philadelphia, CIV. A. 06-4826, 2008 WL 3927381, at *8 (E.D. Pa. Aug. 21, 2008),
where the Eastern District distinguished DiBella because the plaintiff was arrested.
In addition, the Third Circuit recently clarified the law as to what constitutes
a “seizure”. In Schneyder, the Third Circuit reaffirmed its adoption of Justice
Ginsberg’ s “continuing seizure” interpretation of the Fourth Amendment that all pretrial restrictions are ultimately intended to secured a defendant’s appearance at trial,
citing her concurrence from Albright v. Oliver, 510 U.S. 266, 277-80 (1994). 653
F.3d at 319-21. Under Schneyder, R.D. was “seized” under the Fourth Amendment
when he was arrested twice on false charges. Accordingly, dismissal is inappropriate.
33
D.
Bucknell and the officers’ supervisors are responsible for R.D.’s
arrest and prosecution.
Bucknell and the officers’ supervisors are responsible for R.D.’s arrest and
prosecution. This case is not one in which a rogue officer filed charges under the
radar; here, the administration was the moving force behind the charges from day one.
“[W]hen a subordinate’s decision is subject to review by the municipality's
authorized policymakers, they have retained the authority to measure the official's
conduct for conformance with their policies. If the authorized policymakers approve
a subordinate’s decision and the basis for it, their ratification would be chargeable to
the municipality because their decision is final.” ”City of St. Louis v. Praprotnik, 485
U.S. 112, 127 (1988) (emphasis added). Liability attaches either for “a particular
decision by a subordinate . . . expressly approved by the supervising policymaker,”
or for “a series of decisions by a subordinate official . . . of which the supervisor must
have been aware...” Id. at 130 (plurality). See id. at 144 (Brennan, J., concurring).
See also Keenan v. City of Philadelphia, 983 F.2d 459, 468-69 (3d Cir. 1992) (police
commissioner’s acquiescence establishes municipal liability).
The arrest and prosecution of R.D. were ratified by Chief Friedberg, President
Bravman and Deans Locher, Badal and Marrara, who are final policymakers for day-
34
to-day law enforcement activities. ¶ 453.16 These policymakers, personally knew of,
encouraged and assisted the officers’ actions. ¶ 454. Accepting these allegations as
true, these policymakers continued to encourage and assist the officers even though
they were personally aware that the medical exam and witness statements showed
that K.S. was not credible. ¶ 455.
The Complaint also alleges that Dean Badal directed K.S. to report to Bucknell
police and accompanied her for the police interview. ¶¶ 85, 87. Chief Friedberg had
the witness statements in his possession and reviewed the charges before they were
filed. ¶¶ 146, 168-170. Deans Locher and Marrara reviewed the evidence before he
was charged. ¶ 148-149. R.D.’s father and attorney pointed out to President Bravman
that the witness statements refuted K.S. ¶¶ 271-272. These allegations are sufficient
at the pleading stage to establish Bucknell’s responsibility for the arrest and
prosecution of R.D.
As to each supervisor’s personal liability, it is more than appropriate to hold
supervisors responsible that “knew of... conduct and approved it.” Blanche Road
Corp. v. Bensalem Tp., 57 F.3d 253, 263 (3d Cir. 1995). See Pembaur v. City of
Bucknell claims that these allegations are conclusory, Bucknell Br. pp. 2526, but these allegations are factual in nature and corroborated by the allegations of
each supervisor’s personal involvement.
16
35
Cincinnati, 475 U.S. 469, 478 (1986) (“Monell is a case about responsibility.”). As
this Court has explained, “personal involvement of a supervisor can be demonstrated
through allegations of personal direction or of actual knowledge or acquiescence in
the alleged wrongs.” Pansy v. Preate, 870 F. Supp. 612, 629 (M.D. Pa. 1994) aff'd,
61 F.3d 896 (3d Cir. 1995). The Complaint has sufficiently alleged each supervisor’s
involvement. This case is like the Duke Lacrosse case where the Court found similar
allegations sufficient at the pleading stage. McFadyen, 786 F. Supp. 2d at 964.
Captain Lauver is also liable as a bystander. “[A]n officer may be liable under
§ 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is
violating an individual’s constitutional rights; (2) has a reasonable opportunity to
prevent the harm; and (3) chooses not to act.” Id. at 952 (quoting Randall v. Prince
George's County, 302 F.3d 188, 202-04 (4th Cir.2002)). As a supervisor, Lauver had
authority to stop the arrest and prosecutions of R.D. ¶ 456. He knew that the arrest
and prosecution lacked probable cause but failed to intervene to prevent the violation
of R.D.’s Fourth Amendment rights. ¶ 456. Viewing these allegations as true (as this
Court must), he should not be dismissed from this action.
In addition, “the inadequacy of police training may serve as the basis for §1983
liability only where the failure to train amounts to deliberate indifference to the rights
36
of persons with whom the police come into contact.” See City of Canton v. Harris,
489 U.S. 378, 388 (1989). The standard is whether “the need for more or different
training is so obvious, and the inadequacy so likely to result in the violation of
constitutional rights, that the policymakers of the city can reasonably be said to have
been deliberately indifferent to the need.” Harris, 489 U.S. at 390.
Bucknell did not train its officers on how to investigate potential crimes, what
constitutes malicious prosecution, and what constitutes probable cause. ¶ 452.
Accepting these allegations as true, these essential determinations were so obvious
that the inadequate training amounted to deliberate indifference. Accordingly, this
Court should not dismiss the claims against Bucknell and the supervisors.
E.
R.D. has stated a state law claim for false imprisonment.
For the above stated reasons, the Bucknell officers caused both of R.D.’s
arrests without justification to do so. Bucknell correctly notes that the supervisors are
named in this state law count as they are liable under state law as well.17
Bucknell claims it is unclear what role Officer Doe, an unknown officer, had.
Plaintiffs allege that he forcibly removed R.D. from campus. ¶¶ 244-255, 459.
17
37
F.
The Bucknell officials conspired with each other, K.S. and her
attorney, Voci, to arrest and prosecute R.D. without probable cause.
The Bucknell officials conspired with each other, K.S. and her attorney, Voci,
to falsely charge and prosecute R.D. As a result of this conspiracy, R.D. was the
subject of a baseless prosecution.
The elements of a civil conspiracy are: “(1) a combination of two or more
persons acting with a common purpose to do an unlawful act or to do a lawful act by
unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the
common purpose; and (3) actual legal damage.” Slater v. Susquehanna County, 613
F. Supp. 2d 653, 668 (M.D. Pa. 2009). Here, (1) Bucknell officials acted with a
common purpose with Voci and K.S. to falsely arrest and prosecute R.D; (2) overt
acts were committed: they arrested R.D. (twice) and prosecuted him; and (3) R.D.
suffered emotional and financial harm.
Accepting the allegations in the Complaint as true, Attorney Voci conspired
with Bucknell officials and K.S. to cause R.D.’s false arrest and prosecution and to
suppress exculpatory evidence. ¶¶ 465-466, 472-473, 474.18 Specifically, he conspired
Bucknell argues that the conspiracy is implausible because K.S. sued it over
her student disciplinary hearing. Viewing the facts in the light most favorable to
Plaintiffs, Voci and K.S. conspired with Bucknell to prosecute R.D. (something they
agreed on) even though they disagreed on how to dispose of K.S.’s charges.
18
38
with President Bravman, Deans Locher, Badal and Marrara, General Counsel
Bromfield, Chief Friedberg, Detective Ettinger, and Officers Holtzapple, Doe, Ulmer,
Middleton and Fisher. ¶¶ 466, 473. Voci consistently worked with Bucknell officials
to initiate the prosecution of R.D., and assented to his client K.S.’s desire that R.D.
“have a record,” though there was no credible evidence on which to arrest him. ¶ 467.
Furthermore, Bucknell didn’t allow R.D. back on campus before his hearing because
Voci objected. ¶¶ 274-279, 283. These acts where done with the common purpose to
prosecute R.D. without probable cause and to remove him from campus. ¶ 468, 475.
Bucknell argues that its officials cannot conspire with each other because they
all work for Bucknell. “However, the Third Circuit has held that individuals who are
agents and of the same principal can form a conspiracy...” Best v. County of
Northumberland, 4:11-CV-00896, 2011 WL 6003853, at *7 (M.D. Pa. Nov. 30, 2011)
(citing Novotny v. Great Am. Fed. Sav. & Loan Assn., 584 F.2d 1235, 1262 (3d
Cir.1978), vacated on other grounds, 442 U.S. 366 (1979)). Accordingly, Plaintiffs
properly alleged that the Bucknell officials “conspired with each other.” Id.19
Bucknell argues that Plaintiffs failed to plead malice, i.e., an intent to injure,
citing Stambaugh’s Air Serv., Inc. v. Susquehanna Area Regional Airport Auth.,
1:00-CV-660, 2006 WL 709229, at *5 (M.D. Pa. Mar. 16, 2006) (Kane, J.). Viewing
the facts in the light most favorable to Plaintiffs, the Defendants clearly showed an
intent to injure R.D. when they arrested and charged him without probable cause in
the face of overwhelming evidence of his innocence.
19
39
G.
Bucknell officials defamed R.D. when they falsely named him and
portrayed him as a sex offender.
Bucknell’s officials falsely named and portrayed R.D. as a sex offender,
recklessly accusing him of committing a sexual assault on K.S. These comments
constitute defamation per se, and they are liable for the damage caused to R.D.
This Court summarized the elements Breslin v. Dickinson Twp.:
(1) the defamatory character of the communication; (2) its
publication by the defendant; (3) its application to the
plaintiff; (4) an understanding by the reader or listener of
its defamatory meaning; (5) an understanding by the reader
or listener of an intent by the defendant that the statement
refers to the plaintiff; (6) special harm resulting to the
plaintiff from its publication; and (7) abuse of a
conditionally privileged position.
1:09-CV-1396, 2010 WL 3293337 (M.D. Pa. Aug. 19, 2010).
Bucknell, Officers Ulmer, Middleton, Holtzapple and Fisher, and Deans Locher
and Marrara all made defamatory communications to third parties about R.D. ¶¶ 479,
489. The communications referred to R.D. as the perpetrator of a sexual assault on
K.S., even though they knew this allegation was false. ¶¶ 480, 482, 494. The
communications also listed his home address in Connecticut thereby spreading the
40
message to his home town. ¶ 494. All persons receiving the communications
understood their defamatory meaning. ¶ 495.20
Bucknell officials made the following defamatory communications:
a.
Officers Ulmer, Middleton and Holtzapple made false accusations in the
criminal complaint and affidavit of probable cause accusing R.D. of
sexually assaulting K.S. ¶¶ 144-145, 312, 315-316, 490(a, d). These
charges were public, and reviewed by, inter alia, the magistrate judge
and prosecutors. ¶ 490(a, d).
b.
On the evening of September 6, Deans Locher and Marrara had R.D.
temporarily suspended. ¶¶ 148-149, 490(b). Dean Locher issued R.D. a
written temporary suspension order. Id.
c.
Dean Locher then told R.D.’s mother, Shelley, that “R.D. must have a
lot bottled up inside,” and that he was “holding a lot in.” ¶¶ 156-157,
490(c).
Plaintiffs have alleged intentional and reckless conduct, but need only prove
negligence. Franklin Prescriptions, Inc. v. The New York Times Co., 267 F. Supp. 2d
425, 436 (E.D. Pa. 2003) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347
(1974)); Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa. 1997) (citing Rutt v.
Bethlehems Globe Publishing Co., 484 A.2d 72 (1984)).
20
41
d.
Bucknell representatives were also quoted in many Daily Item articles.
¶ 490(j). For every day of sexual misconduct hearing, Bucknell officials
were quoted discussing the hearing. ¶¶ 299, 490(j). Bucknell directed
and participated in the publication of the defamatory publication by the
Daily Item. ¶ 490(j).
e.
On October 7, Bucknell found R.D. responsible for Disorderly Conduct
and issued a formal letter of censure. ¶ 490(k).
These statements were made in spite of overwhelming evidence refuting K.S.’s
claims. ¶ 487. The defamatory communications continued to be re-published after
these Defendants were made aware of the falsity of the allegations against R.D. ¶ 491.
Bucknell argues that the Complaint fails to allege which officials made each
communication to the press and what articles contain those statements. However,
federal pleading practice does not require these sort of stringent particularity of
pleading defamation claims that Pennsylvania practice requires. See e.g., Cuturilo v.
Jefferson Reg'l Med. Ctr., CIV. 10-1723, 2011 WL 2941031, at *4 (W.D. Pa. July 20,
2011); Rapid Circuits, Inc. v. Sun National Bank, Civil Action No. 10-6401, 2011
WL 1666919, at *11 (E.D.Pa. May 3, 2011); Roskos v. Sugarloaf Twp., 295 F. Supp.
2d 480, 492 (M.D. Pa. 2003); Krochalis v. Ins. Co. of N. Am., 629 F. Supp. 1360,
42
1368 (E.D. Pa. 1985); Karr v. Lower Merion Twp., 582 F. Supp. 410, 413 (E.D. Pa.
1983). Accordingly, a plaintiff need not plead “the precise defamatory statements so
long as the count provides sufficient notice to the defendant.” Mascarini v. Quality
Employment Services & Training, 1:10-CV-1546, 2011 WL 332425, at *8 (M.D. Pa.
Jan. 31, 2011). “Nor must the individual who made the statement be specifically
identified if notice pleading standards are satisfied.” Id.
In Joyce v. Alti Am., Inc., Joyce alleged that the defendants made remarks to
third-parties, naming one such third-party. CIV. A. 00-5420, 2001 WL 1251489, at
*3 (E.D. Pa. Sept. 27, 2001). The complaint only named one of the defendants who
made any of the defamatory comments, and the Court held that “the allegations do
provide Defendants with sufficient notice to infer that they were made by other Alti
employees.” Id. However, the Court granted the motion to dismiss and gave Joyce
leave to amend, finding that Joyce did not sufficiently “give Defendants notice of the
basic nature” of the defamatory communications. Id. As in Joyce, Plaintiffs have
given the Bucknell Defendants more than sufficient notice of who made the
communications. Unlike in Joyce, Plaintiffs have clearly delineated the subject matter
of the defamation (that R.D. committed a sexual assault). These allegations are
sufficient to survive a motion to dismiss as Bucknell is on notice of Plaintiffs’ claim.
43
Similar to this case, this Court has found that a plaintiff sufficiently pled
defamation by alleging that the defendant made “false statements about Plaintiffs
committing the aforesaid criminal offenses” at the magisterial hearings. Roskos, 295
F. Supp. 2d at 492. See also Reager v. Williams, 3:08CV2035, 2009 WL 3182053,
at *5 (M.D. Pa. Sept. 25, 2009) (defamation claim sufficient); Rishell v. RR Donnelley
& Sons Co., CIV.A. 06-4782, 2007 WL 1545622, at *3 (E.D. Pa. May 24, 2007)
(denying motion to dismiss) (“While Plaintiff fails to list the individuals to whom this
statement was made by name, he does identify specific groups of individuals to whom
that statement was published including “retired employees of [Defendant]” and
“employees of Y & S Candies.”); Borrell v. Weinstein Supply Corp., CIV. A.
94-2857, 1994 WL 530102, at *3 (E.D. Pa. Sept. 27, 1994) (defamation claim
sufficient even though it does not state which employees made the remarks).
Therefore, this Court should not dismiss the defamation claims.
Bucknell also argues that defamation does not apply to non-verbal conduct,
such as R.D.’s suspension, but Pennsylvania law allows defamation actions for
nonverbal as well as verbal communication. D'Errico v. DeFazio, 763 A.2d 424, 432
(Pa. Super. Ct. 2000); Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1327 (E.D.
Pa. 1994); Krochalis v. Ins. Co. of N. Am., 629 F. Supp. 1360, 1368 (E.D. Pa. 1985)
44
(citing Berg v. Consolidated Freightways, Inc., 421 A.2d 831 (1980); Bennett v.
Norban, 151 A.2d 476 (1959)). As the Eastern District explained, “Actions alone may
be legally defamatory where it is shown that such actions, by innueno, created a
negative impression of the character of the Plaintiff in the eyes of a third person.”
Clemente v. Espinosa, 749 F. Supp. 672, 676 n. 4 (E.D. Pa. 1990).
In Bennett, for example, the Pennsylvania Supreme Court found that the
conduct was sufficiently slanderous when the plaintiff treated like a thief, in that she
was questioned about her pockets, asked to remove her coat and her purse was
searched. 151 A.2d at 98. In this case, as in Bennett, R.D.’s suspension and arrest
made him look guilty to third parties and was defamatory.
Bucknell Defendants also argue that Dean Locher’s statements to Shelly were
mere opinions, citing Purcell v. Ewing, 560 F. Supp. 2d 337 (M.D. Pa. 2008). In that
case, this Court was dealing with pure insults, such as an accusation that the
plaintiff’s photograph “looks to me like” a child molester. Id. at 342-44. Unlike in
Purcell, Locher was not merely insulting R.D., but implying that there were
defamatory facts undisclosed to Shelley that Shelley did not know about.
At the pleading stage, this Court should not conclude that Locher’s statement
is a mere opinion. See Rishell, 2007 WL 1545622, at *2 (declining to find statement
45
that plaintiff was “socially inappropriate” was statement of pure opinion at the
pleading stage). Pennsylvania follows Restatement (2d) of Torts § 566 that an opinion
is actionable “if it implies the allegation of undisclosed defamatory facts as the basis
for the opinion.” Green v. Mizner, 692 A.2d 169, 174 (Pa.Super.Ct .1997). “[I]n cases
where a plausible innocent interpretation of the communication coexists with an
alternative defamatory interpretation, the issue must proceed to a jury.” Id. The
Restatement illustrates, “A writes to B about his neighbor C: ‘I think he must be an
alcoholic.’ A jury might find that this was not just an expression of opinion but that
it implied that A knew undisclosed facts that would justify this opinion.” § 566,
Illustration 3. Like the example, Locher’s statement implied Locher’s statement was
based upon undisclosed defamatory facts, i.e. R.D. committed a sexual assault.
Bucknell additionally denies that R.D. has pled special harm, claiming he was
required to plead (1) pecuniary loss or (2) that each statement was made to a nonDefendant. Plaintiffs note that “the relationship of the hearer is irrelevant. As long as
the disparagement is communicated to a third person, the element of the cause of
action is satisfied.” Bragle v. Revell, 674 F. Supp. 13, 14 (W.D. Pa. 1987).
Accordingly, Defendants committed defamation by communicating with each other.
46
Moreover, because R.D. alleges slander per se, he does not have to prove
special damages.21 Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. Ct. 2000). See
Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (2002);
Beverly Enterprises, Inc. v. Trump, 182 F.3d 183, 187 n. 1 (3d Cir. 1999). Unlike a
standard defamation case, “Generalized damage to reputation and business is
presumed as a natural consequence of slander per se.” Clemente, 749 F. Supp. at 680.
Unlike Bucknell, which belittles R.D.’s “bemoan[ing]” of his “supposed harm to his
reputation,” Bucknell Br. p. 32, this Court must fully accept his allegations as true
and take all reasonable in his favor. See Marcone v. Penthouse Intern. Mag. for Men,
754 F.2d 1072 at 1080 (1985) (allowing recovery for humiliation); Brinich, 757 A.2d
at 397-98 (sufficient harm where third party might have believed allegations and
plaintiff angered by comments).
Bucknell argues that the suspension of R.D. and decision to find him
responsible for disorderly conduct were not published communications. To publish
a statement, one need only communicate it to a third party. Speight v. Pers. Pool of
Am., Inc., CIV.A. 93-2055, 1993 WL 276859, at *5 (E.D. Pa. July 20, 1993) (citing
Nevertheless, Plaintiffs have alleged specially damages. ¶ 496. He suffered
actual loss to his reputation and is now subject to public hatred. ¶¶ 484, 497-498.
Many people have declined to associate with him and concluded that he lacked honor
and integrity. ¶¶ 481, 499-500.
21
47
Chicarella v. Passant, 494 A.2d 1109, 1112 (1985)). As Plaintiffs have alleged that
these communications were communicated to the parties to the disciplinary
proceeding and among the Defendants, the claim is sufficient. See also Connor v.
Archdiocese of Philadelphia, 601 Pa. 577, 612, 975 A.2d 1084, 1105 (2009) (“[T]hey
admit that they distributed the Information Letter to St. Eleanor’s parents...”).
Viewing the facts in the light most favorable to Plaintiffs, Bucknell’s officials
communicated his guilt to a sexual offense. Because they have sufficient notice of the
defamation he complains of, this Court should deny the Motion to Dismiss.
H.
Bucknell officials committed fraud when they misled R.D. about
exculpatory evidence to cover-up their mishandled investigation.
Bucknell officials committed fraud in that they misled both the prosecutors and
R.D.’s family as to the true facts behind the K.S.’s allegations. ¶ 502. This was done
to cover up its incompetence and mishandling of the allegations. ¶ 503. Due to
Bucknell’s fraud, R.D. and his family were unable to quickly uncover Bucknell’s
misconduct surrounding its investigation of this matter. ¶ 504. Ultimately, his
continued criminal prosecution resulted.
The elements of fraud are:
48
(1) a representation; (2) which is material to the transaction
at hand; (3) made falsely, with knowledge of its falsity or
recklessness as to whether it is true or false; (4) with the
intent of misleading another into relying on it; (5)
justifiable reliance on the misrepresentation; and (6) the
resulting injury was proximately caused by the reliance.
Kline v. EDS Relocation & Assignment Services, 1:CV-08-0980, 2008 WL 4822026,
at *3 (M.D. Pa. Nov. 4, 2008) (quoting Sewak v. Lockhart, 699 A.2d 755, 759 (Pa.
Super.1997). Here, (1) Bucknell officials made multiple representations about the
lack of available evidence, (2) the representations were material to R.D.’s ability to
prove his innocence, (3) the officials knew the representations were false, (4) the
representations were made to induce reliance, (5) R.D. justifiably relied on the
misrepresentations, and (6) he was injured.
Prior to his hearing, Bucknell hid and did not provide several materials that
would have aided in R.D.’s defense of the criminal prosecution and Bucknell’s
disciplinary proceeding. ¶ 510. Bucknell officials knowingly made materially false
representations by withholding exculpatory materials from R.D. prior to Bucknell’s
disciplinary hearing. ¶ 511. Specifically, on September 6, Officer Ulmer withheld
K.S.’s written statement, claiming that she had not pressed charges yet, a fact that
49
Ulmer knew to be false. ¶ 506.22 R.D. justifiably relied on this representation in not
further seeking to obtain a copy of his statement or in seeking to contest any
statement K.S. made. ¶ 507. Office Holtzapple was also aware of an audio recording
of K.S.’s September 5 statement, but failed to turn this statement over to R.D. ¶ 508.
R.D. was prejudiced due to these misrepresentations because he could not contest the
obvious falsity of statements that he knew nothing about. ¶ 509. R.D. justifiably
relied on these misrepresentations in not taking action he otherwise could have to
fully and immediately exonerate himself. ¶ 513. Bucknell made these
misrepresentations so that the prosecutors would proceed with the criminal
prosecution. ¶ 512. The prosecutors justifiably relied on these misrepresentations in
beginning to prosecute R.D., until they realized the charges were baseless. ¶ 514.
Bucknell claims that Plaintiffs have failed to plead who committed the fraud,
what constituted fraud, where the fraud was committed, when the fraudulent
statements were made, or why they were made. However, at the pleading stage, the
Complaint sufficiently puts Bucknell on notice of the nature of Plaintiffs’ allegations.
Bucknell claims that the officer was correct because charges were not filed
until September 7. The officer’s representation was not that charges had not been
filed; it was that K.S. had not requested that charges be file.
22
50
In the Duke Lacrosse case, the Court there found similar allegations sufficient
where the plaintiffs alleged that the defendants covered up their misconduct by
making false representations. McFadyen, 786 F. Supp. 2d at 989. This case is nearly
identical to McFadyen, and this Court should allow Plaintiffs’ allegations of fraud to
proceed to discovery.
I.
Bucknell officials conspired with Voci to commit fraud.
Bucknell simply points to its prior sections on conspiracy and fraud. Plaintiffs
likewise point to the Court to its response to those sections above.
J.
Bucknell breached its contract with R.D. when it violated its Student
Handbook.
Accepting the allegations in the Complaint as true, Bucknell’s Student
Handbook was part of R.D.’s contract with Bucknell. ¶ 525. Bucknell breached this
contract by, inter alia, failing to adequately and impartially investigate the
allegations; failing to locate exculpatory information; failing to provide R.D. relevant
information; denying R.D. the right to confront his accuser; finding R.D. guilty of
Disorderly Conduct despite K.S.’s refusal to answer any questions and a total lack of
51
evidence; failing to grant R.D.’s appeals; and failing to maintain a record of the
proceedings. ¶ 526.23
Bucknell faults Plaintiffs for not citing to the contract, but the Student
Handbook is the contract. The “relationship between a private educational institution
and an enrolled student is contractual in nature; therefore, a student can bring a cause
of action against said institution for breach of contract where the institution ignores
or violates portions of the written contract.” Swartley v. Hoffner, 734 A.2d 915, 919
(Pa.Super.Ct.1999). “The contract... is comprised of written guidelines, policies, and
procedures as contained in the written materials distributed to the student...” Id. See
Kimberg v. Univ. of Scranton, 3:06CV1209, 2007 WL 405971, at *3 (M.D. Pa. Feb.
2, 2007). Bucknell attaches the Handbook in an attempt to refute Plaintiffs’
Complaint, but the Handbook supports Bucknell’s breach.
Bucknell was required to provide R.D. with “[a] copy of the charge[s] and
supporting information, including the Public Safety Information Report, Police
Report, Housing and Residential Life Information Report, and statements from any
Bucknell Defendants seek the dismissal of Provost Mick Smyer, but this
would be premature. At a minimum, he was involved in denying R.D. a recording of
the original hearing and the opportunity to create a record of the appellate
proceedings. ¶¶ 423-426. Smyer also denied R.D.’s appeal despite all of the
procedural errors and clear lack of evidence. See ¶ 430. At this stage, Plaintiffs have
sufficiently alleged his involvement in Bucknell’s misconduct.
23
52
witnesses...” Handbook p. 116.24 See id. pp. 114-15 (must provide all reports); id. p.
115 (must show“all documentation”). R.D. had “the right to be advised during the
hearing of all the evidence relevant to the charge, to have an opportunity to rebut
adverse testimony, and to ask questions of [K.S.]” Handbook p. 122. Bucknell
breached this duty when it withheld exculpatory evidence from R.D.25
Bucknell also violated the Handbook when the hearing board considered K.S.’s
written statement after she refused to testify. “Witnesses may submit written
statements... But such statements cannot be used in the hearing if the authors of the
same are not present to answer possible questions that may arise in regard to their
written information.” Handbook p. 123. See also id. pp. 135-36 (written statements
inadmissible unless witness can be cross-examined); id. p. 123 (“Witnesses... are
required to speak candidly and honestly.”). K.S.’s statement was inadmissible because
she refused to submit to cross-examination. In considering this statement, Bucknell
Bucknell argues that the contract only requires Bucknell to provide
information “when appropriate.” Bucknell Br. p. 39. While the timing may be an issue
of dispute (which should favor Plaintiffs at this stage in any event), the Handbook
clearly requires the disclosure at some point. Even at the hearing, R.D. was notified
of additional evidence being withheld. ¶ 313.
24
Bucknell notes that the charges were investigated, but—viewing the evidence
in the light most favorable to R.D.—this cannot be sufficient when the investigator
intentionally overlooked exculpatory evidence and withheld such evidence from R.D.
in violation of the handbook.
25
53
also violated its obligation to support any finding“only on the basis of evidence...
which was presented at the hearing...” Handbook p. 123.
Bucknell should have dismissed the case outright when she refused to testify.
As an accuser, K.S. “must respond to relevant questions posed by [R.D.]” Handbook
pp. 124-25. Bucknell argues that dismissal is discretionary, but it still could not be
arbitrary. Bucknell had an obligation to deal fairly with R.D. as a party to this
contract. Moreover, there was no evidence to support the charges. A student can be
found responsible only base upon “a preponderance of the evidence that supports the
position that the alleged violation more likely than not occurred in the way charged”
Handbook p. 123-25, 136. As every testifying witness refuted the allegations, the
evidence was insufficient to prove that K.S.’s allegations were probably correct.26
Bucknell then violated its obligations to R.D. in not granting his appeal. Under
the Handbook, it is its “responsibility” “to grant an appeal if... [t]here was a
Bucknell argues that the disorderly finding was supported by R.D.’s playfighting. To the contrary, the testimony was that no one intended that anyone get hurt.
Such consensual conduct could not be considered disorderly. The definition of
Disorderly Conduct reveals that R.D.’s actions weren’t even close. Handbook p. 93.
He did not disrupt an event, cause alarm, recklessly endanger others, etc. Id. In any
event, the hearing testimony could not support the allegations “in the way charged”
by K.S., Handbook p. 124, 136, which was that he was punching her in the vagina
and chest, etc. Finally, Plaintiffs note that Bucknell again is viewing the facts in the
light most favorable to itself, not the Plaintiffs.
26
54
substantial procedural error, or one or more rights of [R.D.] were significantly
abridged in the hearing process, and it had a material effect on the outcome of the
case.” Handbook p. 144. There were substantial procedural errors as R.D. was denied
exculpatory evidence, K.S.’s statement was improperly admitted, R.D. was denied his
right to cross-examine K.S., and there was not any evidence (much less a
preponderance) to support the decision where every witness supported R.D.
Bucknell argues that the Complaint does not alleged sufficient damages, but
Plaintiffs have alleged that as a result of his criminal prosecution and finding of
responsibility in the sexual misconduct hearing, R.D. was seriously harmed. ¶¶ 527,
535, 544. He was suspended and incurred attorneys fees and other costs associated
with his defense. ¶¶ 442, 449, 469, 476, 522, 551, 560, 573. Therefore, this Court
should not dismiss this claim at this early stage in the proceedings.
K.
Bucknell discriminated against R.D. as a male student accused of
sexually assaulting a female student.
Bucknell discriminated against R.D., as a male student subject to a school
disciplinary action alleging a sexual assault, on the basis of his sex. ¶ 534. In virtually
all cases of campus sexual assault, the accused student is male and the accusing
student is female. ¶ 532. Bucknell, in the manner in which it approaches the
55
investigation, adjudication and appeal of such allegations, creates an environment in
which the accused is so fundamentally denied due process as to be virtually assured
of a finding of guilt. ¶ 533.
Bucknell received federal funds, ¶ 531, discriminated against R.D., controlled
the hearing process, had actual knowledge of the process, was deliberately indifferent
to the discrimination, and the discrimination was significant (punishing R.D. without
evidence). See Stefanowicz, 2010 WL 3938243, at *4 (citing elements of Title IX
claim).Bucknell cites Stefanowicz, but that case was a preliminary injunction case
requiring the plaintiff to show a “reasonable likelihood of success”. 2010 WL
3938243, at *3. In ruling on a motion to dismiss,“a complaint may not be dismissed
merely because it appears unlikely that the plaintiff can prove those facts or will
ultimately prevail on the merits.” Phillips, 515 F.3d at 233 (citing Twombly).
R.D.’s allegation differs from K.S.’s allegations in that case, in that R.D. is
arguing that Bucknell discriminated against him—not that Bucknell failed to protect
him from K.S. This case is more like a Western District case where the Court declined
to dismiss Complaints with much less detail than the Plaintiffs’. Mary V. v. Pittsburgh
Pub. Sch. Frick Middle Sch., 9-1082, 2010 WL 562909, at *2 (W.D. Pa. Feb. 17,
2010) (“Because Plaintiff is not required to plead detailed facts, I reject Defendants'
56
argument that the Amended Complaint is deficient due to a lack of chronological and
other specifics about the Plaintiffs' meetings with school personnel.”).
Franchi v. New Hampton School, 656 F. Supp. 2d 252 (D.N.H. 2009), is also
distinguishable as in that case, Franchi did “not allege that NHS excluded CF from
participation in its programs ‘on the basis of sex,’ but on the basis of her eating
disorder.” Id. at 261. Viewing the facts in the light most favorable to R.D., he was
treated differently than a female similarly situation (K.S.). As explained above,
Bucknell excused her non-compliance from its rules in the hearing and found him
guilty without evidence. More importantly, Bucknell ignored the allegations against
her in choosing who to charge criminally. K.S. was never charged with disorderly
conduct, harassment or assault for yelling profanities in the middle of the night or for
repeatedly slapping R.D. to the extent that she had to be restrained. This is in spite of
the fact that every witness agreed that she engaged in such behaviors. Accepting these
facts as true, Bucknell discriminated against R.D. by treating him differently.
L.
Bucknell is liable for negligence.
Bucknell mis-characterized the truth, ignored clear evidence of R.D.’s
innocense, facilitated a process that violated his rights, and removed him from
57
campus to leave him alone at night in a park by himself. ¶ 539.27 Plaintiffs have
alleged Bucknell’s duty to its students and violation of that duty, and R.D.’s damages.
See Landsman v. Gustin Stone Supply, Inc., 307-CV-00202, 2007 WL 2068223, *3
(M.D. Pa. July 17, 2007).
Bucknell claims that the Complaint does not allege causation or damages. R.D.
was suspended and incurred attorneys fees and other costs associated with his
defense. ¶¶ 442, 449, 469, 476, 522, 551, 560, 573. Bucknell asks this Court to
overlook R.D.’s suspension, but his suspension from campus is not insignificant. R.D.
lost his educational payments made for that time frame. ¶ 540. R.D. also suffered
physical and psychological harm. ¶¶ 441, 448, 470, 477, 515, 523, 561, 574.
Bucknell cites the gist of the action doctrine. However, “if the contract is
merely collateral to the wrong described, the existence of a contract does not prevent
recovery in tort.” Sarsfield v. Citimortgage, Inc., 707 F. Supp. 2d 546, 553 (M.D. Pa.
2010). Here, Bucknell’s negligence extended well beyond its contractual obligations
and caused additional harms, such as his false arrest and malicious prosecution. In
addition, it is premature to dismiss the tort claim as there are no facts of record at this
Like most factual allegations that would defeat its motion to dismiss,
Bucknell declines to accept these allegations as true. Bucknell Br. p. 46. This Court,
of course, must accept these allegations as true at this stage.
27
58
juncture relating to either the tort or contract claim. Accordingly, this Court should
allow him to proceed on both claims so that the record may be developed.
M.
Bucknell failed to exercise reasonable cause in its hiring, training ,
supervision and retention of its employees.
Bucknell had a duty “to exercise reasonable care in selecting, supervising and
controlling employees.” R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 697
(Pa. Super. Ct. 2000). Here, Bucknell violated this duty by its systemic and grossly
inadequate training, supervision and policies. ¶ 543. These allegations are sufficient
as they meet the elements of the tort, and dismissal is not warranted.28
N.
Bucknell Defendants conspired to interfere with R.D.’s contract.
Accepting the allegations in the Complaint as true, Attorney Voci conspired
with Bucknell officials, K.S. and her father to interfere with R.D.’s contract with
Bucknell. ¶ 553, 554, 557. Voci also conspired with General Counsel Bromfield to
not allow R.D. back on campus. ¶ 555. In a telephone call between Voci, Bromfield,
Bucknell indicates that they may concede respondeat superior liability. Yet
Bucknell has not filed an Answer, there are no facts of record, and Bucknell’s claim
of acquiescence to supervisory liability in its Brief is not binding on it later.
Accordingly, dismissing this Count at this juncture would be premature.
28
59
and Attorney Becker, Voci demanded that R.D. not be allowed to finish his studies
at Bucknell. ¶ 556. All these acts where done with the common purpose between Voci
and Bucknell. ¶ 559. These allegations sufficiently plead a conspiracy as well as the
overt act: the interference with R.D.’s contract. See Remick v. Manfredy, 238 F.3d
248, 263 (3d Cir. 2001) (setting forth elements of tortious interference). See also
Deangelo Bros., Inc. v. Platte River Ins. Co., CIV.A. 3:09-CV-1198, 2010 WL
2635983, at *8 (M.D. Pa. June 29, 2010) (declining to dismiss where Complaint
alleged:
(1) a contract; (2) “purposeful action... to harm that contractual
relationship”; (3) no privilege; and (4) damages).
To the extent Bucknell disputes its breach, those arguments are addressed
above. Bucknell claims it could not conspire to interfere with its own contract, but
cites no legal authority to support this argument. If Bucknell attempts to develop this
argument in its Reply Brief, Plaintiffs will seek leave to file a Sur-Reply.
O.
Bucknell officials intentionally inflicted emotional distress on R.D.
Accepting the allegations in the Complaint as true, Attorney Voci and Bucknell
officials willfully and maliciously humiliated and scarred R.D. ¶ 564. They made
false public statements to portray R.D. as a cruel sex offender. ¶ 564-565. R.D.
60
suffered extreme distress as the result of unjustly being suspended and unable to
participate in the campus life he had looked forward to. ¶ 564-565. Their actions
distressed him due to the possibility of permanently being barred from campus and
never being able to participate in the college experience. ¶ 566. Moreover, as a result
of their actions, he was accused of a crime he never committed. ¶ 567. R.D. suffered,
and will continue to suffer inter alia, severe emotional distress, mental anguish,
embarrassment and humiliation. ¶ 568, 585.
Bucknell argues that the actions were not sufficiently outrageous. In Chuy v.
Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979) (en banc),
the Third Circuit found evidence sufficient to state an IIED claim where a doctor
falsely said a player suffered from a fatal disease. In Banyas v. Lower Bucks Hosp.,
437 A.2d 1236, 1239 (1981), the Pennsylvania Superior Court found conduct
sufficiently outrageous that falsely attributed a person’s death to the plaintiff. This
case is like Chuy and Banyas, as Bucknells officials knowingly made false and
outrageous claims against R.D. Furthermore, the baseless arrests were outrageous.
See Schmoltz, 2000 WL 62600, at *9 (finding false arrest and malicious prosecution
sufficiently extreme and outrageous to sustain IIED claim).
61
Bucknell claims that R.D. doesn’t properly allege distress, but his allegations
of emotional anguish and the reasons why (suspension, arrest, etc.) are sufficient. See
id. at *8 (“The allegation in the Complaint that Schmoltze suffered emotional distress
as a result of Defendants' tortious conduct is sufficient at this time to support his
cause of action.”). As the Third Circuit recognized when it reversed a district court
for dismissing a disability discrimination claim, “Fowler is not required, at this early
pleading stage, to go into particulars about the life activity affected by her alleged
disability or detail the nature of her substantial limitations.” Fowler, 578 F.3d at
213-14. As in Fowler, R.D.’s allegations are sufficient to survive a motion to dismiss.
Bucknell also claims R.D. failed to plead physical injury, but R.D. repeatedly
alleges physical injury. See ¶¶ 441, 448, 470, 477, 515, 523, 561, 574. “Ultimately,
the plaintiffs must provide competent medical evidence to prove the existence of
emotional distress.” Mascarini v. Quality Employment Services & Training,
1:10-CV-1546, 2011 WL 332425 (M.D. Pa. Jan. 31, 2011) (citing Kazatsky, 515 Pa.
183, 527 A.2d 988, 995 (Pa.1987)). “However, at the motion to dismiss stage, it is
sufficient that plaintiffs have alleged emotional distress.” Id. Under the liberal
pleading standard, the allegations are more than sufficient.
62
P.
Bucknell officials conspired with each other and Voci to cause
emotional distress to R.D.
Accepting the allegations in the Complaint as true, Voci and Bucknell officials
conspired to defame R.D. and intentionally inflict this emotional distress by taking
action such as barring him from campus that falsely portrayed him in a defamatory
light for alleged sexual misconduct. ¶ 570-571. These unlawful acts where done with
a common purpose. ¶ 572.
Q.
Bucknell caused emotional distress to R.D.’s mother, Shelley.
Voci and Bucknell officials willfully and maliciously humiliated and scarred
R.D.’s mother, Shelley. ¶ 576. They intentionally made false public statements to
portray R.D. as a cruel sex offender, which caused Shelley severe distress. ¶ 577-578.
Shelley also suffered as the result of her son being unjustly being suspended and
unable to participate in campus life. ¶ 578. Shelley was distressed over the possibility
of her son being permanently barred from campus. ¶ 579. Shelley was also distressed
as a result of the fraudulent criminal charges. ¶ 580. As of September 14, Bucknell
officials were aware of Shelley’s condition. ¶ 581.
Shelley suffered physical and psychological harm, pain and suffering. ¶ 582.
Shelley actually suffered physical injury as the result of these outrageous actions of
63
the Defendants, and grew frail and ill due to Defendants’ actions. ¶ 583.29 After R.D.
was falsely arrested the second time, Shelley was so ill and distressed she could not
physically drive her car to pick up R.D. ¶ 584.
Bucknell argues that her claim should be dismissed because Bucknell’s actions
were directed at R.D. However, Shelley was on campus for much of the complained
of conduct, and she was present as a member of the public to hear and read the false
allegations disseminated about her son. On at least one occasion, the defamatory
allegations were made directly to her. ¶ 490(c). At the pleading stage, these
allegations are sufficient to put the Defendants on notice of her claims.30
Bucknell argues that Shelley’s claim that she suffered “physical illness” is
a “bald conclusion”. Bucknell Br. p. 53. This is a factual statement that this Court
must credit coming from Plaintiff Shelley herself.
29
In the alternative, Plaintiffs would seek leave to amend. As an active
Bucknell alum, this has destroyed Shelley’s relationship with Bucknell. Shelley was
forced to resign from her role as a mentor to students, her involvement with the
International Relations Department (having helped begin development of the major
as a student in the 1970's) and Global Residential College; and as co-chair of her 35th
Reunion Committee (Reunion June 2011). In addition, the Stefanowiz litigation took
place over Parents’ Weekend from which the entire family was effectively precluded.
The Bucknellian article regarding R.D.’s case was front page Homecoming Weekend
while many of her alumni friends, trustees, college friends and son Connor saw the
article prominently displayed not only on campus but in numerous business
establishments.
30
64
III.
CONCLUSION:
For the foregoing reasons, this Court should deny Defendants’ Motions to
Dismiss except as to Defendants Remley and Rishel.
BOYLE, AUTRY & MURPHY
/s/ Joshua M. Autry
Dennis E. Boyle, Esquire
Supreme Court I.D. No. 49618
Joshua M. Autry, Esquire
Supreme Court I.D. No. 208459
Megan E. Schanbacher, Esquire
Supreme Court I.D. No. 306958
4660 Trindle Road, Suite 200
Camp Hill, PA 17011
Phone: (717) 737-2430
Fax: (717) 737-2452
Email: [email protected]
[email protected]
[email protected]
Dated: January 11, 2012
65
CERTIFICATE OF SERVICE
I hereby certify that on the date listed below I electronically filed the foregoing
with the Court using the CM/ECF system, which sent notification of such filing to the
following person(s) at the following email address(es):
Amy C. Foerster, Esquire
[email protected]
Mark T. Perry, Esquire
[email protected]
/s/ Penny A. Rogers
Penny A. Rogers, Paralegal
Dated: January 11, 2012