MEMORANDUM-DECISION and ORDER
Presently before the court is the defendants’ motion for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 21). Plaintiff opposes the motion, and defendants have filed a reply. (Dkt. Nos. 29-30, 33, 36). Plaintiff has also filed a letter, requesting that the court consider additional “previously unavailable” evidence in opposition to defendants’ motion, and defendants have opposed. (Dkt. Nos. 39, 40). This matter was referred to me by the Honorable Glenn T. Suddaby, upon consent of the parties, pursuant to 28 U.S.C. § 636(c) for final resolution of this motion only. (Dkt. Nos. 37-38).
I. Background
A. Facts
Both parties have reviewed the facts of this case extensively in their memoranda of law, and the court assumes the parties familiarity with the relevant facts. The motion for judgment on the pleadings applies only to some of plaintiffs claims. However, I will include a brief summary of the facts as stated in the complaint.
In the spring of 2013, Rachel Valdivieso, a Colgate University (“CU”) student with whom plaintiff once had a brief relationship, reported to CU officials
When defendant Valerie Brogan, an Investigator in the CU Campus Safety-Department, attempted to contact Ms. Valdi-vieso to schedule a meeting, Ms. Valdivieso responded that “she was on leave from school.” (Compl. ¶ 40). Plaintiff alleges that ultimately, defendants determined to investigate the incident between plaintiff and Ms. Karashel, even though she did not personally make the complaint. (Compl. ¶¶ 42-44). Defendants Kimberly Taylor
Defendant Brogan contaetéd plaintiff and scheduled a meeting with him for March 22, 2013. (Compl. ¶ 54). In a letter, dated March 21, 2013, defendant Taylor ordered plaintiff to have no contact with either Ms. Valdivieso or Ms. Karash-el. (Compl. ¶ 55). The meeting between plaintiff and defendant Brogan, which was also attended by defendant Christina Khan,
Defendant Taylor informed plaintiff that he would be detained “in the basement of Curtis Hall,” pending his disciplinary hearing, and he would not be allowed to go anywhere else. (Compl. ¶¶ 83-84). Plain- ' tiff alleges that defendant Taylor told plaintiff that if he wanted to forego staying in Curtis Hall pending the disciplinary hearing, he could return home to Bangladesh, and CU would pay for the flight. Plaintiff would then be given the opportunity to participate in the disciplinary hearing by “Skype” or by telephone. (Compl. ¶ 85). Plaintiff opted to stay in the United States, and at approximately 10:00 p.m. on March 22, 2013, he was escorted by Campus Safety Officers from the location of his interrogation to his dormitory room, where he was given the opportunity to gather
Plaintiff claims that the Curtis Hall room was dirty, had no “drinking water” in it,
Plaintiff received a “charge letter,” stating that plaintiff violated CU policy, based on five incidents involving Ms. Karashel and one incident involving Ms. Valdivieso. (Compl. ¶ 111). The disciplinary hearing was scheduled for April 2, 2013. (Id.) Plaintiff states that he tried, without success, to adjourn the hearing date.
Plaintiff claims that eventually, he felt too intimidated to continue reviewing the documents and sent a text message to Professor Kagle in an effort to get a ride back to her house. (Compl. ¶ 118). Defendant Cook “demanded to know” who plaintiff was texting, and “[sjeveral minutes later” Professor Kagle was “pulled over by a Hamilton Police Officer,” but was not issued a citation. (Compl. ¶ 119). Plaintiff claims that defendant Cook told plaintiff that Cook’s “partner” in the Hamilton Police Department told Cook that plaintiffs “host mom” had been pulled over and “would not be coming to get him.”
Plaintiff claims that on April 1, 2013, defendants Khan and Suzy M. Nelson
After the hearing, defendant Taylor told plaintiff that the panel had decided to expel him, but refused to explain the reasons for the chosen sanction. (Compl. ¶ 140). Defendant Brogan contacted Ms. Karashel to inform her of the panel’s decision to expel plaintiff. (Compl. ¶ 142). Plaintiff appealed, defendant Nelson recused herself, and appointed defendant Douglas A. Hicks
The day after defendants denied plaintiffs appeal, defendants Khan and Taylor contacted plaintiff and told him that he had to leave the country immediately because his student visa was terminated when he was expelled. (Compl. ¶ 159).' Plaintiff left Hamilton and moved to New York City in May of 2013. (Compl. ¶ 166). Plaintiff claims that in August of 2013, officers from the Immigration and Customs Enforcement office came to Professor Kagle’s door, asking about plaintiff, and “told Prof. Kagle certain things that they could only have learned from Colgate including, that they knew [plaintiff] had stayed with [Kagle] and that he had been ‘kicked off campus.’ ” (Compl. ¶ 160).
B. Procedure
Plaintiff has sued CU, its Board of Trustees, and several of its employees in conjunction with his claim of improper and discriminatory expulsion from CU in 2013. (See Compl.) Plaintiff challenges all aspects of the procedures used to discipline him as well as the discipliné imposed. The complaint contains fourteen -causes of action. (Compl. ¶¶ 201-267). Plaintiff alleges violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.;
II. Judgment on the Pleadings
A. Legal Standards
After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Maggette v. Dalsheim,
To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is “plausible on its face.” Ashcroft v. Iqbal,
In deciding a motion to dismiss, the court considers the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice. Roberts v. Babkiewicz,
However, even if a document may be considered “integral” to the complaint, “ ‘it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.’ ” DiFolco,
B. Application
Before I consider the merits of defendants’ motion for partial judgment on the pleadings, I must resolve the issue of which documents may be reviewed as part of the motion.
1. Defendants’ Materials
There are two ways in which the defendants’ documents may be considered: either as exhibits to their answer or as materials integral to the complaint.
Plaintiff argues that the defendants’ declarations and the emails referenced therein are not “instruments” for purposes of Rule 10, notwithstanding that they are attached to the answer. Plaintiff argues that the instruments to which Rule 10 refers are documents such as contracts, wills, promissory notes, or share certificates: written legal documents that define rights, duties, entitlements or liabilities. (Pl.’s Mem. of Law at 14) (citing Black’s Law Dictionary) (Dkt. No. 33). See United States v. Int’l Longshoremen’s Assn.,
Defendants have attached two declarations to their amended answer. The first “declaration” is by defendant Brogan, and the second declaration is by defendant Taylor. (Dkt. No. 16-1, 16-2). The Brogan Declaration states only that she is employed by CU as an Investigator for the CU Security Department, who was directly involved in investigating the complaints levied against plaintiff. (Brogan Decl. ¶ 1). The rest of the declaration refers to documents, attached as exhibits to the declaration, with a citation to the paragraph in the complaint where the document is mentioned and relied upon for plaintiffs claims. (Brogan Decl. ¶¶ 2-3). These exhibits were filed under seal and include the complainant’s first statement.
In Kimberly Taylor’s declaration, she states that she is employed by CU as the •Associate Dean for Conduct and the CU Disciplinary Officer. (Taylor Decl. ¶ 1). She states that she is responsible for overseeing the CU student' disciplinary policies and procedures, and that she was directly involved in the disciplinary charges and procedures that are the subject of plaintiffs action. (Id.) The rest of the declaration simply refers to documents, attached as exhibits to her declaration, with a citation to the paragraph where the document is mentioned and.relied upon in the complaint.
The defendants’ declarations do not contain contested statements of fact. The defendants simply identify themselves and identify the documents which are attached to their declarations, all of which are also referenced in the complaint. None of the identifying information in the declarations is disputed by plaintiff, and each document
The same is true for the emails attached to defendant Taylor’s declaration. Plaintiff either sent or received the emails that are attached to this declaration, and plaintiff incorporated them by reference into his complaint. Plaintiff claims that the documents attached to the Brogan declaration, consisting of the emails by the two alleged victims in this case, are hearsay and incomplete.
In Routh v. University of Rochester,
In this case, the exhibits attached to the defendants’ declarations do not pose any new allegations or theories, and both plaintiff and defendants were well aware of the documents and the facts asserted therein. Plaintiff cites Rose v. Bartle,
On September 9, 2014, plaintiffs counsel filed his own set of documents and requested that the court consider them in deciding this motion. (Dkt. Nos. 29, 30). These materials consist of plaintiffs own “Declaration,”. together with a document identified as Ms. Karashel’s second statement. (Dkt. No. 30); a “Voluntary Statement” in an unrelated matter (Pl.’s Ex. 1) (Dkt. No. 29); a “Notice of Intent to Use Identification Evidence” in an unrelated matter (Pl.’s Ex. 2) (Dkt. No. 29); the response to another student’s disciplinary appeal, written by defendant Suzy M. Nelson (Pl.’s Ex. 3) (Dkt. No. 29); the CU Code of Student Rights and Responsibilities (excerpted from the CU Student Handbook, 2014-15) (Pl.’s Ex. 4) (Dkt. No. 29); and the Statement of Nondiscrimination Policy, (excerpted from the CU Student Handbook, 2014-15) (PL’s Ex. 5) (Dkt. No. 29).
Most recently, plaintiff has requested that the court consider two additional documents. (Dkt. No. 39). One document is a report, dated June 2, 2014, from the Advisory Committee on Campus Security, (Dkt. No. 39-1), and the second document, is a Memorandum, written by defendant President Jeffrey Herbst, with the subject title “Response to Advisory Committee on Campus Safety Report.” (Dkt. No. 39-2). This memorandum responds to questions and “concerns” regarding the Equity Grievance Policy and process. (Id.)
Plaintiffs declaration contains additional facts and arguments that this court will not consider in a motion for judgment on the pleadings. The court does note that in his complaint, plaintiff does refer to a “second statement” by Ms. Karashel (Compl. ¶ 147). The complaint alleges that plaintiffs “appeal” was supported by this second statement. (Id.) However, the court also notes that the statement attached to plaintiffs declaration is unsigned, undated, and unattested. To the extent that plaintiff claims that this is the statement that he attached to his appeal, the court could consider it as incorporated by reference.
Plaintiff has filed additional materials that are totally unrelated to his case, both in his initial opposition to the defendants’ motion and in his October 2014 submission of two additional documents. They include documents that plaintiff could not have relied upon in drafting the complaint, particularly documents from unrelated investigations in which defendant Brogan appears to have been involved, and assessments of the Equity Grievance Process (“EGP”), drafted long after the incidents in this case occurred and were investigated. These documents may not be considered in a motion for judgment on the pleadings, and this court will not convert the motion into one for summary judgment to consider these materials. (See PL’s Ex. 1-3 in Dkt. No. 29 and PL’s Ex. 1-2 in Dkt. No. 39).
Plaintiff has also submitted excerpts from CU’s Student Handbook for 2014-15. To the extent that the Student Handbook is publicly available on the CU website, the court may consider it as the current handbook.
III. Color of State Law
A. Legal Standards
To state a claim under section 1983, the plaintiff must allege both that the defendant has violated plaintiffs rights under either the Constitution or laws of the United States and that the defendant acted “under color of state law.” Rae v. County of Suffolk,
(1) the entity acts pursuant to the “coercive power” of the state or is “controlled” by the state (“the compulsion test”);
(2) when the state provides “significant encouragement” to the entity, the entity is a “willful participant in joint activity with the [sjtate,” or the entity’s functions are “entwined” with state policies (“the joint action test” or “close nexus test”); or
(3) when the entity “has been delegated a public function by the [sjtate,” (“the public function test”).
Sybalski v. Indep. Grp. Home Living Program, Inc.,
The issue of whether a private security guard or an off-duty police officer acts under color of state law has been extensively litigated in this and other circuits. See Jocks v. Tavernier,
In Cancel v. Amakwe,
Cancel’s theory of the City’s delegation of police powers to private businesses is insufficient by itself plausibly to allege that Gibson was acting under color of state law. Gibson was employed by a private business at the time of the alleged assault, and any authority he had over Cancel and other citizens derived solely from that role and was not made possible only because he was “clothed with the authority of state law.”
Id.
B. Application
Defendants seek to dismiss the plaintiffs Fourth Cause of Action, a section 1983 claim against defendants Brogan, Cook, and Tucker because none of these defendants acted “under color of state law” for purposes of section 1983 liability. There is no dispute that CU is a private university, and without more, individuals who are employed by CU would not act under color of state law.
Plaintiff argues that defendant Brogan acted under color of state law, in part because she maintains part-time employment with the Hamilton Police Department, and that CU also maintains a cooperative relationship with the Hamilton Police Department in the investigation of criminal or ' potential criminal charges stemming from incidents that occur on CU property.
None of plaintiffs allegations transform the alleged actions taken by defendants Brogan, Cook, and Tucker into “state action.” Even if any or all of the three defendants are employed “part-time” by the Hamilton Police Department, there is absolutely no allegation that they were on-duty when the conduct alleged in this case took place, that the police department was in any way involved with defendant Brogan’s investigation into the incidents described in this case, or that defendant Brogan’s investigation was conducted under the authority of the police department.
The complaint contains no factual statements that would connect the conduct “at issue” to the Hamilton Police Department. The fact that CU may have an agreement to cooperate with the Hamilton Police or to “investigate violent felonies” does not transform defendants’ actions into color of state law in this case. As stated above, this was a purely internal CU investigation, and the authority that these defendants had over plaintiff was derived solely from the defendants’ private employment with CU and not because of any relationship with the police department.
Even if the security officers did complete a “New York State Basic Course for Police Officers,”
This case is distinguishable from Yuan v. Tops Market, No. 5:10-CV-1251,
The same rationale was applied in Fleck v. Trustees of the University of Pennsylvania,
However, the court acknowledged that private security officers may be deemed to perform public functions for purposes of section 1983 when the security guard is employed by a police department or works “jointly” with a township police officer. Id. (citing Traver v. Meshriy,
The court stated that where private security guards are endowed by law with “plenary police powers, such that they are defacto police officers, they may qualify as state actors under the public function test.” Id. (citing Romanski v. Detroit Entertainment, LLC,
Although the court ultimately held that the Penn Police Department was not an entity capable of being sued, the court
In an effort, to show that this result applies here, plaintiff argues that defendant Brogan identified herself as a Village of Hamilton Police Officer “to a complainant in another case,” and that the university stated that she identified herself in that manner “under circumstances in which she was in fact acting within her duties on behalf of the Police Department.” (Pl.’s Br. at 18). Plaintiff states that “this is further evidence that when conducting criminal investigations on campus,” defendant Brogan acts under color of state law. (Id.) (emphasis added). This fact, even if true, does not support plaintiffs assertion that defendant Brogan was acting under color of state law in this case,
Plaintiff alleges that this case is unlike the “security guard” analogy and more akin'to the situation in Marsh v. Alabama,
There was no analysis of whether the police in Marsh acted under color of state law. In a discussion of the facts, the court
Plaintiff in this case does not allege that CU is the equivalent of a town, itself acting under color of state law, and therefore, its security personnel act under color of state law. Thus, the Marsh analysis is not applicable here. This case is more similar to a situation in which, although the individual defendants may or may not be employed part-time by the Hamilton police, their actions during the incidents in question were not taken because of the power of the police, in conjunction with a police investigation, or in any way related to a police investigation.
IV. Conspiracy 42 U.S.C. §§ 1985 & 1986
A. Legal Standards
In order to survive a motion to dismiss conspiracy claims under section 1985, the plaintiff must allege:
(1) a conspiracy; (2) for the purpose of depriving either directly or indirectly, any person or class of person of the equal protection of the laws; of of equal privileges and immunities under the laws; and (3) an act in furtherance of the conspiracy; (4) whereby a person is either injured in his person or property or deprived of any right or privilege of a citizen of the United States.
Bastuk v. County of Monroe, No. 12-CV-6154T,
This defense is known as the intracor-porate conspiracy doctrine and is based on the assumption that the officers, agents, and employees of a single corporate or municipal entity, each acting within the scope of his or her employment are legally incapable of conspiring with each other. Varricchio v. County of Nassau,
B. Application
Plaintiffs fifth cause of action alleges a conspiracy to interfere with plaintiffs civil rights under section 1985(3). (Compl. ¶¶ 221-24). Defendants argue that because they are all employed by, or are trustees of, CU, no action for a section 1985 conspiracy can survive. Relying on the language in Girard, plaintiff argues that the' intracorporate conspiracy defense does not apply because the doctrine applies only when the challenged action is “essentially a single act,” and in this case, plaintiff is alleging “a multitude of independent acts by Defendants not related to a single policy or corporate decision.” (Pl.’s Br. at 20). In Bastuk, however, the court rejected a similar argument by the plaintiff.
A closer analysis of Girard itself does not support the plaintiffs argument. In Girard, the plaintiff alleged that the conspiracy involved multiple acts by the defendants.
The court discussed the statutory requirement that “two or more persons conspire,” and found that this requirement is not satisfied by proof that the discriminatory decision reflected the “collective judgment of two or more executives of the same firm.” Id. (quoting Dombrowski v. Dowling,
In this case, although plaintiff attempts to argue that there was no “single act,” it is clear that plaintiff is complaining about discrimination against him and about his expulsion from CU based upon his nationality. All of the defendants’ conduct was allegedly related to that end. So while the defendants may have engaged in “separate” actions, those actions were all aimed at one alleged goal, and all of the defendants were acting in their capacities as employees of the university.
Finally, plaintiff argues that the intra-corporate conspiracy doctrine does not apply to “criminal conspiracies.” (Pl.’s Br. at 21). Plaintiff reasons that in this case, “the false imprisonment of Faiaz constitutes the crimes of ‘unlawful imprisonment’ and ‘coercion,’ ” therefore the doctrine should not apply. However, the case cited by plaintiff in support of his argument interpreted the law as it applied to conspiracies under section 1985(2), which refers to conspiracies to obstruct justice, or to intimidate parties, witnesses, or jurors. 42 U.S.C. § 1985(2).
A claim under 42 U.S.C. § 1986 for failure to prevent the violation of a person’s civil rights may not exist absent a viable section 1985 claim. Accordingly, plaintiffs Sixth Cause of Action based upon section 1986 is also dismissed. See Tardd v. Brookhaven Nat. Lab.,
V. False Imprisonment
A. Legal Standards
Plaintiff asserts a state law claim of false imprisonment. (Compl. ¶¶ 242-45). In order to prevail on a false imprisonment claim in New York, the plaintiff must show that-
(1) he was confined, (2) the defendant intended to confine him, (3) the plaintiff was aware of his confinement, (4) the plaintiff did not consent to the confinement, and (5) the defendant’s actions were not otherwise privileged.
P.P. v. City of New York, No. 13 Civ. 5049,
B. Application
In this case, plaintiff alleges that, after he was placed on “interim suspension” prior to his hearing, the defendants “imprisoned” him in a “cramped and dirty” room in the “deserted” basement of Curtis Hall, a building on the CU campus. (Compl. ¶¶ 79, 88). Plaintiff stayed in Curtis Hall, with a Campus Safety Officer posted outside the door, from the night of March 22, 2014 until he was taken to a professor’s home on March 24, 2013 at approximatély noon. (Compl. ¶¶ 86, 102). Plaintiff was escorted back to his dormitory at one point during this confinement in order to get an ethernet cable for his computer.
Plaintiff states that prior to having him escorted to Curtis Hall, defendant Taylor told plaintiff that “if he wanted to forgo staying in the basement of Curtis Hall, he could return [home] to Bengladesh” and that CU would pay for the flight. (Compl. ¶ 85). Defendant Taylor explained to plaintiff that he could participate in the disciplinary hearing via “Skype” or by telephone. (Id.) Plaintiff did not take the opportunity to go home.
Defendants argue that plaintiffs claim for false imprisonment must be dismissed because he consented to the confinement after defendants encouraged him to go home to Bangladesh and offered to pur
In P.P. v. City of New York, No. 13-CV-5049,
The defendants in P.P. argued that plaintiff failed to state a claim for false imprisonment because he was never “confined,” Geller House was an “unlocked facility,” from which plaintiff was able to leave at any time of the day or night. Id. The court held, however, that “what P.P. personally felt about whether he was allowed to leave Geller House is irrelevant to whether a “reasonable person” would have “felt free to leave under the totality of the circumstances.” ” Id. (citing Frey, supra at *2).
In this case, defendants claim that plaintiff was given the option to go home and chose to stay, indicating his “consent” to staying at Curtis Hall. Defendants cite plaintiffs email as evidence that he wished to stay, after being given a “choice.” In an email to defendant Taylor, plaintiff states that after he had been questioned for several hours, and he was feeling dizzy and sick, “it was strongly suggested that I go to my home country, Bangladesh.” (Dkt. No. 16-2 at 36). Plaintiff states that defendant Dean Khan tried to book a plane ticket that very night, but that plaintiff “managed to convince her that I was too exhausted and strained to be able to do that.” (Id.) Plaintiff states that he was only offered a one-way ticket, and was encouraged to attend the disciplinary hearing via Skype or telephone. (Id.)
The fact that plaintiff attempted to convince Dean Khan to let him stay because he was top exhausted to do anything else does not establish that he was consenting to stay in Curtis Hall, under security surveillance. In fact, it is unclear whether he knew the alleged condition of Curtis Hall at the time that he was attempting to convince Dean Khan that he should be allowed to stay in this country. The next paragraph of the email states that he was taken to his own dormitory after the questioning was over to gather his belongings and then escorted to Curtis Hall. Defendants state that he was offered the
Because the relevant standard is whether a reasonable person would have felt free to leave under the “totality” of the circumstances, given the statements submitted by each side, this court finds that this issue cannot be resolved on the pleadings, notwithstanding the extra documents that defendants have attached to their answer. Plaintiff has stated at least a plausible claim for false imprisonment.
VI. Breach of Contract/Failure to Observe Procedures
A. Legal Standards
“A student may sue his college or university for breach of an implied contract in certain situations.” Routh v. Univ. of Rochester,
The terms of the agreement are contained in the university’s “ ‘bulletins, circulars, and regulations, which are made available to the student.’ ” Id. (quoting Vought v. Teachers Coll., Columbia Univ.,
When a disciplinary dispute arises between the student and the university, “judicial review of the institution’s-actions is limited ‘to whether the [institution] acted arbitrarily or whether it substantially complied with its own rules and regulations.’ ” Routh,
“The application of contract principles to the student-university relationship does not provide judicial recourse for evexy disgruntled student.” Id. The initial interpretation of a university’s catalogue, “is a matter of law for the Court.” Deen v. New School University, No. 05 Civ. 7174,
B. Application
In moving for dismissal of plaintiffs tenth and eleventh causes of action, defendants argue that the university substantially complied with its rules and did not act arbitrarily or in bad faith with regard to any of the decisions challenged by the plaintiff. Defendants also argue that if the court allows the contract claim to proceed, plaintiffs tenth and eleventh causes of action should be combined because the claim that the university failed to follow its procedures (eleventh cause of action) is part of the contract claim. (Def.s’ Br. at 13-14 & n. 10) (Dkt. No. 21-1 at 19-20). Defendants are correct that the tenth and eleventh causes of action must be considered together because, as stated above, the standard for evaluating a contract claim with respect to a disciplinary dispute is whether the institution substantially complied with its own rules and regulations. Based on this standard, this court finds that plaintiff has failed to state a plausible contract claim.
Plaintiff first alleges that the university used the incorrect disciplinary process. The plaintiff was disciplined using the Equity Grievance Process (“EGP”) instead of the Student Conduct Board.
Plaintiff first states that the university has violated the requirement that “standards of consistency and equity [in disciplinary proceedings] are maintained.” (Compl. ¶ 180(a)). This basis for breach of contract has been specifically rejected by courts in the Second Circuit. See e.g. Okoh v. Sullivan, No. 10 Civ. 2547,
Plaintiff claims that the EGP was not the appropriate choice for the conduct with which the university charged him because it deals only with complaints of “sexual harassment, sexual assault, or other forms of discriminatory and bias-related harassment,” but none of the allegations against plaintiff involved such conduct. (Compl. ¶ 177). However, in another section of the EGP, it states that this process also applies to “Violence between community members in an intimate relationship to each other.” (EGP, (d)(v)). While this section states that this conduct may also be a violation of other university rules, it is covered by the EGP. The conduct alleged in this section of the EGP is exactly the conduct with which plaintiff was charged. The section implies that the same conduct could be charged under either procedure. Thus, CU did not fail to abide by its own rules in charging plaintiff under the EGP.
Plaintiff also alleges that, under the EGP procedures,
Plaintiff cites the EGP sections which govern “interim suspensions,” arguing that these sections have been violated. (EGP Rules (VII)). One section provides that an interim suspension may be imposed only when the safety or well-being of any members) of the campus community may be jeopardized by the presence of the accused on campus, and the next subsection provides that in cases where an interim suspension is imposed, the student in question must be given the opportunity to be heard regarding the suspension. (Compl. ¶ 180(c), 180(d)). Although it is unclear, it appears that plaintiff is claiming that he was not given a proper opportunity to oppose the interim suspension.
However, in the letter written by defendant Taylor to plaintiff on March 22, 2013, placing him on interim suspension, defendant Taylor details the reason for the interim suspension and informs plaintiff that he has the opportunity to be heard by defendant Taylor either “prior to” or as soon after the suspension “as reasonably possible” to show cause why the suspension should not be implemented. (Taylor Decl. Ex. A). The letter specifically states “I therefore invite you to make a phone
Plaintiff cites three more procedural requirements which he alleges were violated by the defendants. (Compl. ¶¶ 180(f)-(h)). However, the documents, and plaintiffs own allegations, show that plaintiff makes no plausible showing in support of his allegations. Plaintiff cites a statement in the EGP that when an allegations “is more properly handled” under a different policy or procedure, the associate provost will direct the matter to the appropriate personnel. (Compl. ¶ 180(c) (see EGP Rules (VII))). As stated above, the EGP clearly covers plaintiffs alleged conduct, thus, section VII was not violated.
Plaintiff next states that the respondent in an EGP hearing must be notified of all the charges in writing at least one week prior to the hearing. (Compl. ¶ 180(f)). Plaintiff admits in the complaint that he received the “charge letter” on March 26, 2013, and the hearing was scheduled for April 2, 2013. (Compl. ¶¶ 110-11). The charging email to which plaintiff refers has been attached to the defendants’ answer, and shows that the notice, detailing each charge, was sent to plaintiff by defendant Taylor on March 26, 2013. The hearing was exactly one week later on April 2, 2013. (Taylor Decl. ¶¶3-4 & Ex. B). Plaintiff also cites the EGP rules providing that the hearing will “generally be convened” within one to two weeks after the completion of the investigation. (Compl. ¶ 180(g)) (see EGP Rules (VIII)(c)). Plaintiff admits in his complaint that he first met with defendant Brogan on March 22, 2013. (Compl. ¶ 62). The hearing was on April 2, well within the required time frame.
Finally, plaintiff states that the hearing “should” be rescheduled for compelling reasons, and that this rule was violated when defendant Taylor refused to grant him an adjournment. (Compl. ¶ 180(h)). The language of the rules provides that “For compelling reasons, the hearing panel chair may reschedule the hearing.” EGP Rules (VIII)(b)(2) (emphasis added). There is no requirement that the hearing be rescheduled. The use of the word “may” clearly indicates that the determination of “compelling circumstances,” and the decision to reschedule the hearing is in the discretion of the hearing panel chair. Plaintiffs own allegations demonstrate the defendants’ substantial compliance with the university’s regulations. Because the test is “substantial compliance” with the regulations, there is no plausible contract claim stated. Plaintiffs tenth and eleventh causes of action are therefore, dismissed.
VII. Negligence
A. Legal Standards
In order to succeed on a negligence claim, the plaintiff must establish the existence of a legal duty, a breach of that duty, proximate causation, and damages. Pasquaretto v. Long Island Univ.,
B. Application
Plaintiff cites Pasquaretto and argues that the University “supervised and controlled a biased and flawed' investigation and seized and unlawfully imprisoned Plaintiff.” (Pl.’s Br. at 30). Plaintiff claims that because the University “controlled” the disciplinary process, a' duty was created. (Id.) Plaintiff also cites Parvi v. City of Kingston,
Neither Parvi, nor Pasquaretto support plaintiff’s position. The “control” discussed in the case law involves activities over which the college exercises control and supervision, and where the plaintiff is physically injured during the activity. See Pasquaretto,
In Parvi, which was not a case involving a university, the police took physical control of inebriated individuals and refused to drop them off where they wanted to go. Instead, the officers dropped plaintiffs off in an area where they were ultimately struck by a car.
In addition, the facts alleged in support of the plaintiffs negligence claim are similar to those alleged in connection with his contract claim-that the University breached its duty (contract) with plaintiff to follow its own rules regarding student discipline. “[S]imply alleging a duty of care does not transform a breach of contract [claim] into a tort claim.” Bd. of Managers of Caton Court Condominium v. Caton Development,
VIII. Intentional Infliction of Emotional Distress (IIED)
A. Legal Standards
In New York, in order establish IIED, plaintiff must plead and prove the following elements:
(1) extreme and outrageous conduct; (2) the intentional or reckless nature of such conduct; (3) a causal relationship between the conduct and the resulting injury; and (4) severe emotional distress.
Routh v. Univ. of Rochester,
B. Application
In this case, plaintiff has cited to no conduct that was so “outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Plaintiff appears to allege that all defendants’ actions, in the aggregate, rise to the level of outrageous conduct. (Pl.’s Br. at 30-31). Plaintiff argues that his false imprisonment, lengthy interrogation, threats of “false criminal charges,” failure to allow sufficient time to prepare for his hearing, expulsion without sufficient reason, refusal to consider claims of discrimination in his appeal, and “apparent” contact of immigration officials all contributed to the outrageous conduct. (Id.)
This court does not agree. In Routh, the court dismissed plaintiffs state law IIED claim notwithstanding a female student’s allegations of rape and other criminal behavior by the plaintiff.
Courts in New York also do not allow IIED claims where “the conduct complained of falls well within the ambit of
Plaintiff attempts to avoid this rule by stating that facts alleged are not entirely covered by the traditional tort of false imprisonment. (Pl.’s Br. at 30). Plaintiff then lists all the other facts that allegedly support the IIED claim, including the threats of false criminal charges, the inadequate time to prepare for his disciplinary hearing, the defective appeals process, the alleged telephone call to his parents, the improper expulsion from school, and the alleged report to immigration officers, all of which this court finds are insufficient to rise to the level of extreme and outrageous conduct. These allegations are also the factual bases for plaintiffs discrimination claim. The only remaining set of factual allegations that plaintiff believes fits the standard for IIED is his false imprisonment claim. However, he has already alleged false imprisonment, and this court has allowéd that claim to proceed. The IIED claim is therefore duplicative and should be dismissed.
IX. Individual Defendants
Defendants argue that the complaint must be dismissed as against individual defendants Christina Khan, Daniel Tucker, Stephen Cook, and Jeffery Herbst. The remaining claims in this action are under 42 U.S.C. § 1981; Title VI, 42 U.S.C. § 2000d et seq.; Title IX, 20 U.S.C. § 1681 et seq.; the New York State Constitution; the New York Human Rights Law, N.Y. Exec. Law § 296 et seq.; and a state claim for False Imprisonment. As defendants correctly argue, individual defendants may not be held liable under Title VI or Title IX because those statutes apply only to the educational entity that receives the federal funds. See Romero v. City of New York,
A. Christina Khan
Christina Khan is the Assistant Dean and Director of International Student Services. The complaint states that defendant Khan was sent by defendant Rugg to “be present” during plaintiffs interrogation. (Compl. ¶ 67). Plaintiff alleges that, although he was told that defendant Khan was there “to support him,” she made no effort to do so. (Compl. ¶ 68). Plaintiff claims that he told defendant Khan that he was having trouble “expressing himself,” but defendant Khan failed to “rectify the situation.” (Compl. ¶ 72). Plaintiff alleges that defendant Khan encouraged plaintiff to go back to Bangladesh. (Compl. ¶ 89).
However, plaintiff also appears to imply that defendant Khan may have been re
None of the conduct alleged by plaintiff states a claim against defendant Khan under the remaining causes of action. The failure to afford plaintiff “sufficient” support at his interrogation does not state a claim for any violation. Plaintiff claims that she “practically ignored him” when he told her that he had hardly slept and had eaten nothing, however, when plaintiff mentioned that he was hungry, he was given a sandwich thirty minutes later. Defendant Khan is not alleged to have been involved in the decision to place him in the Curtis Hall location,
In fact, defendant Khan’s potential assistance in obtaining an ethernet cable and a telephone allowed plaintiff to communicate with the outside world when he was staying in Curtis Hall. Her assistance actually helped plaintiff. Her participation in a telephone call with plaintiffs parents in which either she or defendant Nelson may have falsely stated that criminal charges could be pursued and may have asked plaintiffs parents to encourage the plaintiff to go home does not state any claim under the remaining statutes. Thus, the court will order dismissal of the action as to defendant Khan.
B. Daniel Tucker & Step hen Cook
These two individuals are Campus Security Officers. Plaintiff alleges that they harassed him while he was trying to review the file in his case. (Compl. ¶¶ 116— 18). Plaintiff also appears to allege that defendant Cook told plaintiff that his host mom would not be picking him up because she had been “pulled over” by the Hamilton Police. (Compl. ¶ 119).
None of the cited conduct states a claim under any of the remaining causes of action. The court would point out that even if a section 1983 cause of action remained, verbal harassment, as offensive or inappropriate as it may be, does not state a constitutional claim. Holland v. Morgenstern, No. 12-CV-4870,
C. Jeffrey Herbst
Defendant Herbst is the President of CU. As discussed above, individuals are not liable under Title VI or Title IX. Thus, defendant Herbst may not be named in either the Title VI or the Title IX claim. Plaintiff alleges that defendant Herbst may be liable under the state law causes of action and section 1981. (Pl.’s Br. at 32). Plaintiff seeks to hold this defendant responsible because he allegedly “knew about Faiaz’s interim suspension, hearing, and expulsion,” and “apparently ratified the wrongful conduct by not redressing it.” (Id.)
In order to state a claim for individual liability under section 1981, the plaintiff must demonstrate “some affirmative link to causally connect the actor with the discriminatory action.” Dasrath v. Stony Brook University Medical Center, No. 12-CV-1484,
“The personal involvement of a supervisory defendant may be shown by evidence that: (1) the defendant participated directly in the alleged constitutional violation, (2) the defendant, after being informed of the violation through a report or appeal, failed to remedy the wrong, (3) the defendant created a policy or custom under which unconstitutional practices occurred, or allowed the continuance of such a policy or custom, (4) the defendant was grossly neg.ligent in supervising subordinates who committed the wrongful acts, or (5) the defendant exhibited deliberate indifference to the rights of [plaintiffs] by failing to act on information indicating that unconstitutional acts were occurring.” Colon v. Coughlin,
Even prior to Ashcroft, courts held that personal involvement requires that the individual who is, or becomes aware of, the violation, have the ability to take action to correct the problem. See Conklin v. County of Suffolk,
Defendant Herbst was not involved in the investigation, the hearing, or the appeal process. Plaintiff does not claim otherwise. Plaintiff alleges that upon information and belief, “several meetings were held with CU faculty and administrators to discuss what had transpired with Mr. Faiaz.” (Compl. ¶ 162). Plaintiff alleges that the meetings occurred “before and after Mr. Faiaz’s expulsion.” (Id.) Plaintiff alleges that defendant Herbst and others attended “some or all of these meetings.” (Id.) Plaintiff then states that, at one of the meetings, defendant Herbst was “confronted” with what happened to plaintiff, and “he said he was aware of the situation.” (Compl. ¶ 163). He also allegedly stated that when Val Brogan “tells me someone has the profile of an abuser, I believe her,” and he did not deny that plaintiff “had been detained.” (Id.)
While plaintiff alleges this shows defendant Herbst’s personal involvement, it does not. Plaintiff alleges that the earliest of the meetings in question happened “the week of March 25, 2013.” March 25, 2013 was a Monday. At the time of this meeting, plaintiffs “detention” was over, and he was residing with his host parent. Defen-' dant Herbst could not have remedied an alleged situation that had already been remedied. Thus, defendant Herbst was not personally involved in any false imprisonment' allegations. Defendant Herbst’s statement that he believes his investigator does not show knowledge of, or personal involvement in, any discrimination that may or may not have occurred. Defendant Herbst was not a part of the appeal process, and thus would not necessarily have been aware of the plaintiffs allegations. Therefore, the complaint may be dismissed as against defendant Herbst based on a lack of personal involvement.
D. John Doe
Plaintiff alleges that lawyer, John Doe, who has now been identified as Philip Zac-cheo,
In Barsoumian, plaintiff alleged tortious interference with contract against the university’s in-house counsel based upon counsel’s allegedly erroneous advice to medical school officials about the requirements of the school’s grievance procedures. Id. Counsel allegedly “intentionally and maliciously chose not to direct the other defendants to follow the terms of [the proper procedures] and failed to prevent the officials from engaging in other impermissible actions.” Id. The court held that “at best” the plaintiffs allegations described the attorney’s failure to correctly advise the university officials regarding the requirements of the grievance procedure, conduct which did not exceed the scope of her privilege to give “honest advice, even if erroneous.” Id.
In this case, plaintiff alleges that “upon information and belief,” defendants Rugg, Taylor and others, “in consultation with [lawyer Doe] had already decided to detain Mr. Faiaz in a basement room at Curtis Hall during his interim suspension.” (Conipl. ¶ 83). Even if this conclusory statement by plaintiff is true, there is absolutely no evidence to even allege that defendant Doe knew what the room was like or whether plaintiff would decide that he wished to go home and would not be staying in the room. Whether his advice was erroneous is not the basis for any claim.
X. Respondeat Superior
Defendants argue that plaintiffs Fourteenth Cause of Action: “Respondeat Superior” should be dismissed because it is not an “independent” cause of action. (Def.s’ Meni. of Law at 18). Plaintiff concedes that respondeat superior is not a “free-standing” claim for relief, but argues that it has been pled separately to “avoid the duplication of including the necessary respondeat superior allegations in each preceding cause of action.” (Pl.’s Mem. of Law at 29). The court notes that the Fourteenth Cause of Action states that it applies only to CU as a defendant. Clearly, there is no “respondeat superior” without the underlying liability. Alexander v. Westbury Union Free School Dist.,
WHEREFORE, based on the findings above, it is
ORDERED, that plaintiffs motion to consider previously unavailable evidence (Dkt. No. 39) is DENIED, and it is
ORDERED, that defendants’ motion for partial judgment on the pleadings (Dkt. No. 21) be GRANTED IN ALL OTHER RESPECTS, and it is
ORDERED, that plaintiffs complaint be dismissed in its entirety as against defendants KHAN, TUCKER, COOK, HERBST, and DOE.
Notes
. Plaintiff states that Ms. Valdivieso made this report by e-mail to Robert Kane, III (a CU Campus Security Officer) with a copy to defendant Brogan on February 20, 2013. (Compl. ¶ 35).
. Kimberly Taylor was the Associate Dean for Conduct and the University Disciplinary Officer at CU. (Compl. ¶ 18).
. Marilyn Rugg was the Associate Provost for Equity and Diversity and the Title DC Coordinator at CU. (Compl. ¶ 17).
. It appears that Ms. Karashel did not prepare the written statement immediately because the complaint states that on March 25, 2013, defendant Brogan "pressured” Ms. Ka-rashel to "provide a written statement as soon as possible.” (Compl. ¶ 25).
. Christina Khan is the Assistant Dean and Director of International Student Services at CU. (Compl. ¶ 15). Plaintiff alleges that defendant Rugg sent defendant Khan to be present during the meeting/interrogation to "support” plaintiff. (Compl. ¶ 68).
. Plaintiff and Ms. Karashel subsequently violated the no-contact order at approximately 6:00 p.m. on March 23, 2013, when Ms. Ka-rashel "came to the window outside of [plaintiffs] room in Curtis Hall and passed an unsolicited note to him.” (Compl. ¶ 98). This behavior was observed by a Campus Security Officer. (Id.)
. Plaintiff was brought drinking water after former defendant Jones visited plaintiff. (Compl. ¶ 93). Defendant Jane Anne Jones is the Director of Counseling and Psychological Services/ Coordinator of Alcohol and Other Drug Services at CU. (Compl. ¶ 22). Ms. Jones was voluntarily dismissed as a defendant in this action, along with defendants Thaddeus J. Mantaro (Director of the Shaw Wellness Institute at CU), and Kevin Alt (a CU Campus Safety Officer). (Dkt. Nos. 24-25).
. Plaintiff acknowledges that when he first tried to contact Prof. Kagle on March 23, 2014, she was "on a ski trip away from [CU].” (Compl. ¶ 94).
. Plaintiff alleges that Professor Kagle also tried, without success, to adjourn the hearing date. (Compl. ¶¶ 122, 127).
. Another individual came to get plaintiff that night. (Compl. ¶ 120).
. Suzy M. Nelson is Vice President and Dean of CU. (Compl. ¶ 16).
. Peter Setlak is the Managing Director of Networks, Systems and Operations at CU. (Compl. ¶ 26).
. Letta Palmer is an Administrative Assistant at CU. (Compl. ¶ 25).
. Margaret F. Darby is an Associate Professor of Writing and Rhetoric at CU. (Compl. ¶ 24).
. Douglás A. Hicks is the Provost and Dean of the Faculty of CU.
. (First Cause of Action, Compl. ¶¶ 201-205).
. (Second Cause of Action, Compl. ¶¶ 206-210).
. (Third-Sixth Causes of Action, Compl. ¶¶ 211-30).
. (Seventh Cause of Action, Compl. ¶¶231-35).
. (Eighth Cause of Action, Compl. ¶¶ 236-41).
. (Ninth-Fourteenth Causes of Action, Compl. ¶¶ 242-67).
. If these materials are considered "integral” to the complaint, they could be considered even if they were not exhibits to the answer.
. Plaintiff alleges that defendants attached only the first of Ms. Karashel's two written statements. (Pl.’s Mem. of Law at 13).
.See also Watkins v. Oaklawn Jockey Club,
. Specifically, plaintiff states that the Campus Safety Department "maintains a ‘[M]emo-randum of Understanding with the Hamilton Police that addresses the investigation of violent felony offenses.' ” (Pl.’s Br. at 16).
. The footnote states that this was a “reasonable inference” from the fact that defendant Cook asked who plaintiff was texting when
. The Supreme Court has held that in cases arising "under section 1983, the "color of state law” requirement has been treated as the equivalent of the "state action” required by the Fourteenth Amendment.” Lugar v. Edmondson Oil Co., Inc.,
. (Compl. ¶ 195).
. Part of the reason that Cornell officers have been granted this power may be that,
. The court stated that the individual officers were on patrol on a street within the Penn Police Department’s patrol zone, when their efforts to maintain public order failed and they arrested two instigators of the disturbance.
. The court would point out that the facts in another case are certainly not within the realm of consideration under a motion for judgment on the pleadings, and this court has not considered what was said in the other case or what type of investigation defendant Brogan was conducting.
.In a footnote, plaintiff refers to the Madison County District Attorney's Office as being involved in the other case. (Pl.’s Br. at 18 n. 10). The difference between that case and this one is apparent from plaintiff’s own description of the situation, including the involvement of the District Attorney’s Office.
. Plaintiff argues, citing Terry v. Ohio,
. In Rackin, the plaintiff alleged sex discrimination by the University, its officers, and certain faculty members.
. Although plaintiff also alleges that the in-tracorporate conspiracy doctrine does not apply because the defendants actions were not taken within the “scope of their employment,” there is absolutely no support for this statement. No defendant is alleged to have taken action for personal reasons, and although discrimination is not "within” 'the scope of one's employment, all of the defendants were acting on behalf of the university during the incidents that form the basis for the complaint. See Vollette v. Watson,
.Plaintiff in this case has alleged claims under section 1985(3), not under section 1985(2)
. According to plaintiff, the room in Curtis Hall had no WiFi and no cellular reception so that plaintiff could not communicate with his family. (Compl. ¶¶ 88, 90).
. P.P. lived at Geller House for a period of time. Geller House was a short-term residential facility providing assessment, emergency care, and psychotherapeutic treatment.
. The complaint distinguishes between the "Student Conduct Board” form of discipline and the EGP. (Compl. ¶ 178). The EGP was created to address any form of harassment on the basis of actual or perceived membership in a protected class, by any member of the college community, which creates a hostile environment. (Compl. ¶ 174). The EGP also addresses cases of sexual harassment and violence. (Id.) Without detailing all the differences between the two forms of discipline, the Student Conduct Board is composed of more individuals, including students, while the EGP has only three members, none of which are students.. (Compl. ¶ 178(a)). According to plaintiff, the EGP affords the individual less rights, and the individuals who make up the EGP have served for less time than those on the Student Conduct Board, and the sanctions imposed by the Student Conduct Board are “more consistent and less severe” than those imposed by the EGP. (Compl. ¶ 178(b)-(e)).
. A copy of the EGP has been attached to the Taylor Declaration as Exhibit C. (Taylor Decl. ¶4 & Ex. C) (Dkt. No. 16-2). As stated above, the court has considered this document because it is relied upon by plaintiff in drafting his complaint and is therefore, incorporated by reference. The court will cite this document as the EGP.
. The complaint states that defendants Rugg, Taylor, and others, in consultation with attorney Doe, “had already decided to detain” plaintiff in the Curtis Hall room. (Compl. ¶ 83). It is unclear who the "others” might be, but Khan is not specifically mentioned as a decision-maker.
. Many courts in this Circuit have discussed whether all of the personal involvement factors, set forth in Colon, are still viable after Ashcroft v. Iqbal,
. The court notes that Attorney Zaccheo has not actually been added as a defendant in this action. Plaintiff has not moved to amend the complaint, and Attorney Zaccheo has not been served. Thus, although both parties refer to him as if he is a defendant, the court will simply analyze this issue as it relates to. "John Doe” attorney, regardless of his actual identity.
. As stated above, although the complaint lists the attorney-defendant as John Doe, plaintiff now alleges that the proper defendant is Philip Zaccheo, Esq., an attorney in the firm representing defendants. However, Attorney Zaccheo is not yet a defendant in this action. To the extent that plaintiff would move to amend his complaint.to add Philip Zaccheo as a defendant, the court would deny that motion as futile, based on the analysis above. A motion to amend should not be denied unless there has been undue delay, bad faith, undue prejudice to the opposing party, or the amendment is futile. Milanese v. Rust-Oleum Corp.,