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July 20, 1973

Michael BECKER, Plaintiff,
John OSWALD, Individually and in his capacity as President of Pennsylvania State University et al., Defendants

Muir, District Judge.

The opinion of the court was delivered by: MUIR

As of February 23, 1973, Plaintiff Michael Becker was a student in good standing at the Pennsylvania State University in State College, Pennsylvania. On that date, the State College police arrested him on charges of unlawful possession of controlled substances. Based on this arrest, the Defendant University commenced disciplinary proceedings against Becker. Following a hearing attended by Becker, the University Hearing Board concluded that he should be dismissed from the University, with leave to apply to the President of the University for readmission after one year. Becker did not avail himself of his right to appeal the Hearing Board's decision to the University Appeals Board.

 Plaintiff commenced this suit under the Civil Rights Act, 42 U.S.C. § 1983, on May 29, 1973. He asserts that the procedures employed at the hearing are constitutionally inadequate and that the Board's decision was not based on substantial evidence. He requests immediate reinstatement to the University, with credit for courses successfully completed during the pendency of the disciplinary action and this suit.

 In my view, Plaintiff's failure to appeal administratively the Hearing Board's decision precludes him from obtaining reinstatement under the Civil Rights Act. Consequently, the merits of his attack on the disciplinary hearing, and the merits of Defendant Pennsylvania State University's position that it may not be sued under 42 U.S.C. § 1983, *fn1" will not be discussed in this Opinion. However, since Plaintiff may appeal from this Court's decision and the Court of Appeals might not agree that the doctrine of exhaustion of state administrative remedies controls this case, a full set of supplementary findings of fact relating to the procedures and evidence at the disciplinary hearing will be appended.

 In several civil rights suits for injunctive relief, the Supreme Court has stated that exhaustion of state administrative remedies was not a prerequisite to the suit. *fn2" Despite the broad language in those cases, and even though the Supreme Court has not required such exhaustion in any case yet decided, the majority of the Courts of Appeals which have interpreted these cases has held that failure to exhaust is excused if the administrative remedy is inadequate or futile. *fn3" The Court of Appeals for this circuit has not set forth such a rule of general application, but has held that a state prisoner must exhaust his administrative remedies before he will be heard to contest in a civil rights suit his prison classification which resulted in his inability to earn remission time. *fn4" In its Opinion, the Court noted the desirability of avoiding potentially voluminous and frequently unnecessary litigation. *fn5" As other courts have noted, the exhaustion requirement also flushes out unconstitutional reasons for the state's action and gives state bodies the opportunity to review their own decisions. *fn6" These salutary effects counsel adoption by this court of the majority rule: failure to exhaust state administrative remedies bars a civil rights suit for injunctive relief unless the remedies are inadequate or resort to them would be futile.

 Given this rule, Plaintiff's case turns on whether the administrative remedies open to him were adequate and if so, whether he exhausted them.

 Defendants proved at trial that, on its face, an appeal was a fair remedy which could have provided Plaintiff the relief he now requests. The details of the standard appellate procedure are set out in the accompanying footnote. *fn7"

 Because, as will be discussed below, Becker maintained at trial that he had unsuccessfully attempted to appeal the Board's decision, he did not offer any evidence that taking an appeal would have been futile. For example, there was no evidence that the Defendant President of the University, who has ultimate authority to decide appeals, would have approved his dismissal regardless of the recommendation of the Appeals Board. *fn8"

 On April 16, 1973, Becker was orally notified of the Board's decision, and was advised that he had five days within which to file an appeal therefrom. He did not do so. On April 23, 1973, Dr. Suit, Director of the Office of Conduct Standards at the University, sent Becker a letter advising him that a written request for an appeal would have to be submitted within five days of receipt of the letter.

 Becker testified at trial that on April 25, 1973, he sent to Dr. Suit a letter requesting an appeal, a copy of which was introduced in evidence. The court does not believe this testimony. Dr. Suit's testimony that no appeal letter from Becker was ever received by him is believed by the court not just because Dr. Suit was a more credible witness than Plaintiff, but also because much of Plaintiff's testimony on this particular point casts doubt on his veracity. His testimony and the lapses in it are set out in a footnote. *fn9"

 The court concludes that Plaintiff deliberately and knowingly failed to take advantage of a reasonable opportunity to appeal administratively from the Hearing Board's findings of guilt and recommendation of dismissal. Plaintiff has not proved that the appeal procedure was inadequate or that an appeal would have been futile. His right to appeal may no longer be available to him, since the President of the University has approved the dismissal; nevertheless, his knowing failure to appeal precludes him from obtaining from this court the relief which might have been afforded him by the University. *fn10" To hold that he is not barred because his administrative remedies are no longer available to him would contravene the policies in favor of exhaustion, such as averting unnecessary litigation and providing state bodies an opportunity to review their own decisions. No justification for such a result appears in the record of this case.

 This Opinion constitutes the findings of fact and conclusions of law necessary for the court's adjudication.

 Judgment in favor of Defendants will be entered.


 1. In his capacity as Director of the Office of Conduct Standards, Dr. Donald T. Suit receives complaints against students, decides whether to prefer charges, informs students of their rights, procedures at hearings, possible sanctions, and appeal procedures, gathers information relevant to the charges via telephone, presents evidence and testimony at hearings, informs the board of an accused student's prior record, and advises the board of precedents in cases of similar infractions.

 2. On February 23, 1973, Michael Becker was arrested at State College, Pennsylvania and charged with the following violations of Pennsylvania law:

(a) Possession of marihuana and hashish
(b) Possession of amphetamines
(c) Possession of ...

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