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April 16, 1973

Henry BROOKINS, Plaintiff,
Allen T. BONNELL, Individually and in his capacity as President of the Community College of Philadelphia, et al., Defendants

VanArtsdalen, District Judge.

The opinion of the court was delivered by: VANARTSDALEN

VanARTSDALEN, District Judge.

 Plaintiff, a first year nursing student at the Community College of Philadelphia (Community College), brings this civil rights action asserting that he has been arbitrarily and capriciously expelled from the Community College's Nursing School without being afforded proper notice and an evidentiary hearing prior to his expulsion in violation of his Fourteenth Amendment due process rights. Plaintiff seeks a preliminary injunction for immediate reinstatement as a student in the Community College's Department of Nursing pending a due process hearing. Tutorial assistance for the education lost during the time plaintiff was denied enrollment is also sought.

 Defendants assert that the plaintiff was mandatorily withdrawn because he (1) failed to submit a State required physical examination report; (2) failed to inform defendants that he attended as a student the Hahnemann Hospital School of Nursing and failed to submit a transcript of his records at Hahnemann; (3) failed to attend class regularly. Defendants contend that the foregoing constitute failures in academic standards rather than disciplinary misconduct and, therefore, do not entitle plaintiff to a due process hearing prior to expulsion. Defendants also contend that court interference will create havoc in the administration of the Community College.

 Plaintiff alleges that he submitted a physical examination report to the secretary of defendant Pyano at the college office, but that it was apparently mislaid or lost. He asserts that he interpreted the Community College application forms as not requiring notice of his Hahnemann Hospital nursing experience, and finally that he missed only three class days in each of his three subjects, which was within permissible limits. Furthermore, because he was dismissed without prior notice of any charge and without a hearing in which he could fully present his contentions, plaintiff alleges violation of his "due process" rights afforded under 42 U.S.C. § 1983 and the Fourteenth Amendment. In support of his motion for a preliminary injunction, plaintiff contends that there is a substantial likelihood that he will prevail at trial and that he will suffer irreparable harm by losing at least an entire year of nursing as a student and professional worker, if not reinstated without delay.

 At the hearing on the motion for a preliminary injunction, held on April 4, 1973, the following facts were developed. *fn1"

 In April 1972, the Nursing Department of Community College accepted plaintiff for its Fall semester, 1972. In compliance with the rules of the Pennsylvania Board of Nurse Examiners, the Nursing Department of Community College require prospective nursing students to file medical examinations before registering for its nursing courses. (P-7). The Nursing Department is obligated by State regulations to keep such records on permanent file. Plaintiff was aware of this requirement; he had received a Community College letter stating that the health forms should be filed by July 5. Plaintiff testified that he obtained and submitted his physical examination reports to defendant Pyano's secretary on August 24, before the start of the Fall semester. (Although this was beyond the required filing date, apparently filing before commencement of the school term would have been satisfactory). In October, the Nursing Department informed plaintiff that his health records were missing or incomplete. Plaintiff discussed the matter with Pyano's secretary who said that she would look for the records, and report back to him. She never contacted plaintiff on the matter. He did, however, have a further discussion with defendant Pyano who insisted that the Department had to maintain on file a medical examination report on all students, and he would have to supply one. He told her that he lacked money for another physical examination and for this reason would not be able to comply with this requirement until the first week of the second semester. There is no indication that Miss Pyano advised plaintiff that this would not be satisfactory. The health record was submitted on March 9, 1973, the second day of the second semester. Neither Miss Pyano, who was ill, nor Miss Pyano's secretary testified at the preliminary injunction hearing, so that it is unknown whether there may be a factual dispute as to the medical reports.

 Dr. Harvey Oates, Director of the Nursing Department, testified that he had discussions with Dr. Hale Cook, the physician indicated as having conducted plaintiff's physical examination. Although Dr. Cook could not initially confirm the facts surrounding plaintiff's health records, he later told Dr. Oates that the tests he administered were as reported on the physical examination report submitted on March 9, 1973. Dr. Cook also stated to Dr. Oates that the plaintiff had been to see him on June 22 and July 12. (P-11).

 Plaintiff failed to note on his Community College application that he attended the Hahnemann School of Nursing. (D-1). He also failed to submit to Community College a transcript of his work at Hahnemann. At the hearing, plaintiff stated that he interpreted the application's instructions as referring only to prior college or university enrollment. Since he did not consider Hahnemann School of Nursing to be a college or university, he did not list it on his Community College application or submit a Hahnemann transcript. After he was informed that a transcript must be submitted, he requested Hahnemann to do so, and it eventually was submitted; the record is unclear as to when these events occurred.

 The testimony of Dr. Oates and the plaintiff was in conflict with respect to plaintiff's class absences. Dr. Oates stated that he was informed by school personnel that plaintiff failed to attend classes regularly. Plaintiff stated he missed occasional classes, approximately three each in Nursing, Biology and Psychology. There is no evidence that these would constitute excessive absences. The problem here is that Community College normally does not retain class attendance records, nor does there appear to be any firm policy as to the number of permitted absences. The only attendance record available was that of plaintiff's Biology class, which indicated that plaintiff had absented himself from class " thrice ", and a further notation that such was "well within the allowable" number of absences. (P-13).

 On January 22, 1973, Miss Pyano and other faculty members convened a Special Planning Meeting to review plaintiff's record. Plaintiff was then on disciplinary probation for threatening Mr. Massey, one of the faculty members present. Plaintiff also had received an initial unsatisfactory clinical evaluation. *fn2" After discussing plaintiff's clinical experience, it was decided that it would be premature to declare plaintiff unsatisfactory since he still had two weeks of the clinical course remaining. Plaintiff then entered the meeting and discussed with the faculty members his clinical experience, the threat against Mr. Massey (for which he apologized) and the alleged withholding of information. The faculty made no conclusions or evaluations on the latter two matters but did state that they thought the matters involved administrative decisions. (P-14). Plaintiff's final clinical evaluation was satisfactory.

 On February 26, 1973, defendant Pyano sent a letter to plaintiff informing him that he must withdraw from the Nursing curriculum at Community College. The reasons expressed in the letter for the mandatory withdrawal were plaintiff's failure to provide the Community College with his physical examination records and a transcript from Hahnemann School of Nursing, and plaintiff's failure to attend classes regularly. These reasons were articulated by Dr. Oates to defendant Pyano in a memorandum dated February 16, 1973. (P-10).

 Plaintiff did not receive any notice of impending withdrawal prior to the receipt of the February 26, 1973 letter. Following the letter, plaintiff had meetings with the Provost, Assistant Provost, defendant Pyano and Dr. Oates. However, it does not ...

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