The opinion of the court was delivered by: Vanaskie, Chief Judge.
On June 7, 1993, plaintiff Richard Homar (Homar) filed this civil
rights action under 42 U.S.C. § 1983 against defendants, all of whom
are officials of East Stroudsburg University (ESU), asserting that his
procedural and substantive due process rights were violated when
defendants suspended him from his position as a campus security officer
without pay without providing him a pre-suspension hearing after the
defendants discovered that Homar had been arrested and charged with a
drug felony. (Dkt. Entry 1.) He also contends that his procedural and
substantive due process rights were violated when defendants demoted him
to the position of groundskeeper. By a Memorandum and Order dated March
17, 1995, I granted defendants' motion for summary judgment, finding that
(1) Homar was not entitled to a pre-suspension hearing; (2) Homar was
provided an adequate hearing before being demoted to the position of
groundskeeper; (3) Homar had failed to establish a "liberty" interest
violation in connection with the demotion; and (4) Homar had failed to
establish a violation of his substantive due process rights in connection
with the suspension and demotion. (Dkt. Entry 34.) On July 18, 1995, the
Third Circuit reversed my determination that Homar's procedural due
process rights had not been violated, concluding, inter alia, that "Homar
was entitled to notice and at least some kind of hearing prior to being
suspended without pay." Homar v. Gilbert, 89 F.3d 1009, 1018 (3d Cir.
1996).*fn1 The Third Circuit also determined that a material question of
fact existed as to whether Homar's suspension and/or demotion abridged
substantive due process, but remanded the matter to determine whether
Homar's position as a campus security officer warranted substantive due
process protection. Id. at 1021. On June 9, 1997, the United States
Supreme Court reversed, in part, the Third Circuit's determination,
concluding that Homar's procedural due process rights were not violated
when he was suspended without pay without being provided with a
pre-suspension hearing. Gilbert v. Homar, 520 U.S. 924, 932, 117 S.Ct.
1807, 138 L.Ed.2d 120 (1997). The United States Supreme Court, however,
noted that the question of whether Homar was provided with "an adequately
prompt post-suspension hearing" had not been addressed by the Third
Circuit or by my March 17, 1995 Memorandum and Order. Id. at 935.
On remand to the Third Circuit, the parties were directed to "submit
briefs addressing the question whether the defendants violated Homar's
procedural due process rights by failing to provide a sufficiently prompt
post-deprivation hearing, as well as the question whether Homar had
properly raised this argument in his original appellate briefing." Homar
v. Gilbert, 149 F.3d 1164, slip op. at 3, 1998 WL 166850 (3d Cir. Mar.
9, 1998). Although Homar conceded that he had not raised the timeliness
of the post-suspension hearing when this case was initially before the
appellate court, the panel did not decide the question of whether the
issue had been waived. Instead, because the case had to be remanded for
consideration of Homar's
substantive due process claim, the Third Circuit directed that this Court
decide in the first instance whether it was appropriate to entertain
Homar's arguments concerning the timeliness of the post-suspension
hearing. If so, the merits of that issue was to be addressed.
After this matter was remanded, a telephonic conference was conducted
on April 23, 1998. The parties were directed to file briefs regarding the
a. Whether [Homar] had pled in this Court a claim of
denial of procedural due process with respect to the
timing and/or adequacy of post-suspension
b. Whether defendants failed to accord plaintiff
timely and/or adequate post-suspension process; and
c. Whether plaintiff's position as a campus security
officer qualifies as a "property interest" for
purposes of substantive due process protection.
Homar was arrested by state police in a drug raid at the apartment of
James Compton in Monroe County, Pennsylvania, on the morning of August
26, 1992. A local newspaper reported the state police's drug arrests, in
pertinent part, as follows:
Police said Joseph Habhab of Tannersville and his
family were at the core of the high-level distribution
ring, which obtained 50 to 100 pounds of marijuana
every few weeks from Mexico through Texas.
State police Sgt. Richard Morris said investigators
found much of the marijuana was sold in the areas of
East Stroudsburg University . . . .
(Dkt. Entry 28, Ex. 12 (emphasis added).)
In the early afternoon of August 26, the state police called defendant
David Marazas, ESU's Police Chief, to inform him of Homar's arrest and
the charges against him. Those charges included possession of marijuana,
possession with intent to deliver, and criminal conspiracy to violate the
controlled substance law, which is a felony.
By mid-afternoon Marazas brought the information to the attention of
defendant Gerald Levanowitz, ESU's Director of Human Resources, who was
the ESU official to whom defendant James E. Gilbert, President of ESU,
had delegated authority to discipline and suspend ESU employees. After
meeting with Marazas, Levanowitz decided to suspend Homar immediately,
without pay. (See Marazas Aug. 26 notes (Dkt. Entry 28) Ex. 13.)
Levanowitz did not conduct a pre-suspension hearing or provide Homar an
opportunity to argue against his suspension. Levanowitz, however, did
issue a suspension letter. (Dkt. Entry 25, Ex. 1.)
Because Homar worked the second shift at ESU, he was to report for duty
at 4:00 p.m. on August 26. He did not report to work that day.
The day after his arrest, on August 27, 1992, Homar called to tell
Marazas that he had been arrested and to ask if he was suspended. (See
Marazas Aug. 26 notes (Dkt. Entry 28) Ex. 13.) Marazas informed Homar
that he was suspended and told Homar that he would deliver Levanowitz's
suspension letter to him later that day. (Id.) The letter advised of the
suspension pending further investigation and disposition of the criminal
charges, but * * * explained that ESU's ultimate decision in the matter
would not necessarily coincide with disposition of the criminal charges.
On the same day (August 27), a Pennsylvania state trooper prepared a
supplemental report describing his interview with Homar the previous day
at 2:00 p.m. The supplemental report stated:
HOMAR related that he started to hang around COMPTON
around January of 1992. Joseph HABHAB would come to
COMPTON'S residence and that is how he (HOMAR) knows
HABHAB. HOMAR knew that COMPTON and HABHAB were
dealing in marijuana. HOMAR related that originally he
knew that HABHAB and COMPTON were dealing in small
amounts but since about January of 1992 he knew that
they were dealing in large amounts of marijuana and
that they were bringing the marijuana in from Texas.
HOMAR further related that HABHAB had given him
marijuana joints in the past for his personal use.
(Dkt. Entry 25, Ex. 3.) The report indicated that Homar "signed a waiver
of his rights form."
During his deposition, Homar denied saying the substance of the
statements attributed to him in the supplemental report. Homar
I feel they — Larry Gerrard, the officer that
was with me, was trying to confuse me at the time to
make these statements — something like this.
This isn't what I said myself, he was trying to
(Homar Dep. (Dkt. Entry 25) at 29.)
Homar addressed some of this confusion by explaining, for instance,
that he did not have knowledge that marijuana was being imported from
Texas: "I only stated that I knew . . . that his brother . . . lived in
Texas and that he went to visit him." (Id. at 29.) Homar also contested
that he stated that Habhab had given him marijuana joints for personal
use. (Id.) Regarding his relationship with Compton, Homar explained
that, as opposed to the supplemental report's version that Homar knew
Compton since 1992, he actually knew Compton "before high school and I
was involved in high school athletics with him and things like that."
(Id. at 27.)
Homar explained that on the morning of his arrest he visited Compton's
apartment, which is located close to Homar's mother. (Id. at 17.) Homar
I went into his house, his apartment was unlit and I
came down to the living room area of his house. I
focused my attention on the TV. Jim was sitting on the
couch at the time and I was telling him how I was
ready to get going; I was in work clothes to do yard
work and I just was in a hurry to get that over with.
And I went to turn to his kitchen area to get a glass
of water. I heard two men come down the hallway in
plain, dark clothes and I was pushed to the ground.
On September 1, 1992, a Pennsylvania state court dismissed the charges
against Homar. Levanowitz learned of the dismissal the next day, but
continued his own investigation. On September 11, 1992, Levanowitz met
with the state police to inquire about Homar's arrest. The state police
provided a copy of the supplemental report to Levanowitz and related a far
different story of the circumstances surrounding Homar's arrest than
maintained by Homar. Levanowitz's notes state:
Trooper George said that when he entered the Compton
residence on August 26, 1992, Mr. Homar was seated on
a sofa in the living room of the house. When Trooper
George yelled State Police and entered the house, Mr.
Homar got up and moved quickly toward the kitchen of
the residence. Troopers [sic] George saw a metallic
object flashing/flying from Mr. Homar's direction
which he thought might be a gun. Then he drew his
weapon. Trooper George related that the metallic
object later turned out to be a metal plate used for
processing and cutting marijuana. Trooper George and
Raab told me that there were four marijuana "joints"
on a coffee table where Mr. Homar had been sitting and
one of the joints was half burned ...