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HOMAR v. GILBERT

September 3, 1999

RICHARD J. HOMAR, PLAINTIFF,
v.
JAMES E. GILBERT, INDIVIDUALLY AND IN HIS CAPACITY AS PRESIDENT OF EAST STROUDSBURG UNIVERSITY, GERALD LEVANOWITZ, INDIVIDUALLY AND IN HIS CAPACITY AS DIRECTOR OF HUMAN RESOURCES OF EAST STROUDSBURG UNIVERSITY, DAVID MARAZAS, INDIVIDUALLY AND IN HIS CAPACITY AS POLICE CHIEF OF EAST STROUDSBURG UNIVERSITY, CURTIS ENGLISH, INDIVIDUALLY AND IN HIS CAPACITY AS VICE PRESIDENT OF EAST STROUDSBURG UNIVERSITY, DEFENDANTS.



The opinion of the court was delivered by: Vanaskie, Chief Judge.

MEMORANDUM

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 following issues:

  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
  proceedings;
  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.

(Dkt. Entry 53.)

I. BACKGROUND*fn2

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 explained:

  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
  persuade me.

(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 stated:

    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.

(Id. at 17-18.)

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 ...

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