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Furey v. Temple University

August 2, 2010

KEVIN FUREY
v.
TEMPLE UNIVERSITY, ET AL.



The opinion of the court was delivered by: McLaughlin, J.

MEMORANDUM

This action arises out of a decision made by Temple University to expel an undergraduate student, Kevin Furey, because of an altercation he had with Travis Wolfe, an off-duty police officer, near campus on April 5, 2008. Furey brings a number of claims against Temple University and various Temple employees*fn1 relating to his expulsion. He seeks to have his expulsion vacated and a new hearing conducted.

The defendants have moved for summary judgment on all claims. The Court will grant summary judgment on all claims except the claim that Temple and the individual defendants violated the plaintiff's right to procedural due process in the expulsion process. The Court finds that there are material issues of fact in dispute that preclude summary judgment as to Temple and several of the individual defendants on the due process claim. The Court will grant summary judgment on all claims as to certain defendants who were not at all involved in the expulsion process.

I. The Summary Judgment Record

On a motion for summary judgment, the Court considers the evidence in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986).

The summary judgment record consists of: Temple's Code of Conduct; the transcript of the hearing that led to the plaintiff's expulsion; depositions taken in this case; depositions from other cases; records of the criminal case that was brought against the plaintiff for the same incident that was the cause of his expulsion; records of the Internal Affairs Investigation of Officer Wolfe's conduct on the night of the incident; documents and letters concerning the plaintiff's hearing and appeal; and certain newspaper articles and internet materials.

A. Temple's Code of Conduct

The jurisdiction of Temple's Code of Conduct extends to behavior on the University's campus and 500 yards beyond. The Code's mission is to place reasonable limitations on student conduct to maintain a safe environment. Temple Code of Conduct, Def. Exhibit B, 2. ("Def. Ex. B") The Code furthers this mission by regulating academic integrity, behavior, alcohol and drug consumption, security on campus and by maintaining disciplinary procedures.

When an incident occurs that could be a violation of the Code, the University Code Administrator determines whether to charge the student with violations of the Code. After bringing charges, the Code Administrator must provide the student charged with a notice of the violations and with hearing information, the identity of witnesses and a description of any evidence filed with the charges. Def. Ex. B, 3.

The Administrator also determines the appropriate hearing process and notifies the investigative body. In making this determination, the Administrator considers the severity of the potential sanction and the complexity of the factual dispute. Def. Ex. B, 10-11.

There are five different bodies that hear charges of violations of the code. Complex cases, or those involving the most severe sanctions, are referred to the University Disciplinary Committee ("UDC") Hearing Panel ("Full Panel"). The Full Panel is composed of three faculty members, one of whom is the chair, and two students. Three other panels, including the Conference Board, handle less complex cases with less severe sanctions. The Review Board consists of two students, two faculty members and one administrator. Def. Ex. B, 11.

The Full Panel is a fact-finding panel and its proceedings are non-adversarial where rules of evidence, standards of proof, and other elements of court proceedings do not apply. Def. Ex. B, 3. A Full Panel hearing occurs thirty business days after the pre-hearing meeting, but the time limits may be extended. During the hearings, the University has the burden to prove the charges brought against the student under a more likely than not standard. Students have the opportunity to conduct a defense, offering their own testimony, witnesses, and evidence. Students also have the chance to question witnesses testifying at the hearing through the presiding chairperson. Id. at 12.

When a student wishes to present witnesses who are members of the Temple community, the student can request that the Code Administrator issue notices requiring the witnesses' appearance at the hearing. Def. Ex. B, 12. If evidence is presented that was not included with the original hearing notice, the student may have time to examine and respond to it. Id. at 13. Students are permitted to have an advisor or attorney help in preparing for the hearing and attend the hearing itself. The advisor or attorney cannot question witnesses or address the hearing body, but can advise the student during the hearing. The Dean of the School that the student attends, the Dean of Students, and the Vice President for Student Affairs or their designee may attend hearings as observers. The hearing body deliberates and determines a violation by majority vote and then recommends a sanction.

When a student is found to have committed a violation of the Code and receives a sanction of suspension or expulsion, the student may appeal directly to the Review Board. Def. Ex. B, 14. The appeal must be based upon (1) availability of new evidence, (2) procedural defects preventing a full and fair hearing, (3) insufficiency of evidence supporting the decision, or (4) sanctions grossly disproportionate to the offense. The appeal must be filed with the Code Administrator, and must state the reasons for appeal. If the Review Board decides that the sanctions are grossly disproportionate, they may recommend modified sanctions. If the Review Board finds procedural defects preventing a fair hearing, they will recommend that there be a new hearing before a new panel. If the Review Board finds that the decision could not have been reached based on the evidence, they will recommend that the decision and sanctions be modified.

These recommendations are conveyed to the Vice President of Student Affairs, who then reviews the entire record and makes a final decision, or has his or her designee do so. In his or her review, the Vice President for Student Affairs must give presumptive weight to the Review Board's recommendations. After the final decision, there is no further review of the decision or sanction.

B. Incident & Criminal Proceedings

The facts surrounding the plaintiff's April 5, 2008, encounter with Officer Wolfe are disputed. Whether the defendants violated the plaintiff's rights in the expulsion process does not depend on whose version of events is correct, but a description of the undisputed and disputed aspects of the encounter is helpful to understand the issues surrounding the disciplinary process. The parties generally agree about the events leading to the incident, but diverge regarding certain details, which the Court will note.

In the spring of 2008, Kevin Furey was enrolled in Temple University as a full-time undergraduate student. Request for Admissions, Def. Exhibit H, 2. ("Def. Ex. H") On April 4th, 2008, he was visiting a friend just off Temple's campus. Hearing Transcript, Pl. Exhibit D, 134. ("Pl. Ex. D") After spending some time and consuming some alcohol at a party, the plaintiff returned to his friend's house in the early morning hours of April 5, 2008. The plaintiff's friend locked himself out of his bedroom, and the plaintiff went to retrieve a machete from his car to pry open the bedroom door. Id. at 135.

While the plaintiff was at or around the trunk of his car, a number of men,*fn2 who the plaintiff believed might try to attack or mug him, approached him, and one of them had a gun. Pl. Ex. D, 136. There were shouts indicating that the man with the gun, Travis Wolfe, was a police officer, but the plaintiff hesitated to believe that and failed to drop his machete. The plaintiff eventually threw down the machete, and Wolfe threw him to the ground, kicking and eventually subduing him.*fn3 Id. at 137-38. The plaintiff was subsequently arrested by Temple police officers, after Wolfe identified himself as an off-duty police officer. Id. at 140.

Because of the severity of his injuries, Police Central Booking refused to admit the plaintiff before he went to the hospital. Pl. Ex. D, 140. At the hospital, the plaintiff was triaged and had CAT scans to determine the nature of any head injuries. Id. at 141. The hospital records made no mention of the plaintiff testing positive for alcohol or of any suspicion of alcohol use. Id. at 169. The plaintiff's arrest occurred within 500 yards of Temple property, thus within the jurisdiction of Temple's Student Code of Conduct. Def. Ex. H, 2.

After his release, the plaintiff was charged with aggravated assault on a police officer. Preliminary Hearing Transcript, Def. Exhibit I. He appeared in Municipal Court before Judge Jimmie Moore in a preliminary hearing on April 15, 2008. Wolfe testified at the hearing. Judge Moore continued the case, and the plaintiff again appeared before Judge Moore on November 24, 2008. Preliminary Hearing Transcript, Def. Exhibit J. At this hearing, the plaintiff made a statement admitting the truthfulness of Wolfe's testimony and apologizing as a precondition to participating in the ARD proceedings.*fn4

C. Notice, Pre-Hearing and Hearing Scheduling

Temple began disciplinary proceedings against the plaintiff by a letter dated April 10th, 2008, notifying him that he was charged with violating the Code of Conduct and would be required to schedule a pre-hearing. The plaintiff was charged with violating Sections 3, 8, and 12 of the Code and given a version of the specifications of the events leading to the charge.*fn5 Section 3 prohibits acts or threats of intimidation or physical violence towards another, including actual or threatened assault or battery. Section 8 prohibits the use or possession of articles endangering a person's health or safety, including knives or other weapons. Section 12 prohibits students from engaging in disorderly conduct. Letter to K. Furey, Def. Ex. A.

The plaintiff requested and received a delay of the pre-hearing until after May 5th so he could finish the semester. The hearing was further delayed until December 2008.*fn6 At the pre-hearing, the plaintiff and his lawyer/mother Margaret Boyce Furey met with Code Administrator Andrea Seiss and Associate General Counsel Valerie Harrison to discuss the incident and the hearing. Def. Ex. H, ¶23; Kevin Furey Deposition, Def. Ex. M, 79:5-24 ("Def. Ex. M")

The plaintiff requested the names and contact information of the men accompanying Wolfe, and eventually received the names Steven Robinson, Colin Anderson and Douglas Segars. However, Temple did not provide contact information for these witnesses.*fn7 Letters between Pl. and Def., Pl. Ex. N.

D. Hearing

On March 25th, 2009, the plaintiff's UDC Hearing was conducted before a full panel of five individuals. Pl. Ex. D, 6. Professor Richard Greenstein chaired the panel and the other faculty representatives were Professor Diane Adler and Professor Keith Gumery. The student panel members were Lisa Krestynick and Malcolm Kenyatta. Code Administrator Brian Foley and Associate General Counsel Valerie Harrison also attended the hearing. Greenstein, Adler, Foley and Gumery Depositions, Pl. Ex. H. Harrison had previously attended approximately six disciplinary hearings. Requests for Admissions, Pl. Ex. K. The plaintiff's mother and father attended, acting as his attorney/advisor and advisor respectively. Pl. Ex. D, 9. Absent from the hearing were the officers who helped Wolfe arrest the plaintiff and the three eyewitnesses accompanying Wolfe. Id. at 10-11. The plaintiff requested a continuance to obtain the witnesses' presence, which Greenstein denied.*fn8 Id. at 13.

At the beginning of the the hearing, the plaintiff was charged with the three violations of the Code set forth in the notice sent to him, and the plaintiff confirmed that he received the incident specifications provided on a summary sheet. Pl. Ex. D, 7-8. The plaintiff and the panel then confirmed that the panel could be fair and impartial in considering the matter. Id. at 9. The panel was unaware of the specifics of the case prior to the hearing, but was provided with a sheet with background information that was not to be considered as evidence. This information sheet recited Wolfe's version of the events. Adler Deposition, Pl. Exhibit I, 39:11-14; Pl. Ex. D, 15. The panel acknowledged that they would make their decision entirely based on the evidence from the hearing.

First to testify for the University was Officer Wolfe, who described the events of the morning of April 5, 2008, in long, mainly uninterrupted statements. Pl. Ex. D, 19-23.

Pursuant to the Code, the plaintiff was allowed to direct his questions to testifying witnesses only to the panel, specifically Professor Greenstein, who then posed questions to the witnesses. Id. at 16. During Officer Wolfe's testimony, the plaintiff posed a number of questions to the panel, some of which Greenstein was reluctant or refused to ask altogether. Id. at 40-41, 49, 79-81. The plaintiff disputed much of Officer Wolfe's testimony, and attempted to highlight the discrepancies via questions and paper evidence of Wolfe's prior testimony. Id. at 51. After a recess, while Wolfe was still under oath and testifying, Wolfe read a prepared written statement into the record, referring to his exoneration by an Internal Affairs Investigation and to the plaintiff's statements at his prior criminal hearing in which the plaintiff admitted Wolfe's version of events and apologized. After Wolfe made this statement, the plaintiff pointed out to the panel that it appeared that Officer Wolfe had been on the phone during the recess prior to making this prepared statement. Id. at 55-57.

The University then called Officer Brian Crawford and Sergeant Ken McGuire of the Temple Police Department. Pl. Ex. D, 101; 118. Both of these officers responded to the scene after Officer Wolfe took the plaintiff into custody. The officers who immediately responded to the scene and took the plaintiff to the hospital were not present at the hearing; both were unavailable for personnel or leave reasons. The plaintiff noted that he was not alerted to the unavailability of these witnesses and was not allowed to reschedule when important witnesses did not show up. Id. at 129-130.

The plaintiff then testified to the events himself.

Pl. Ex. D, 134. In questioning the plaintiff about his fear of attack or robbery, Professor Greenstein stated to the plaintiff, "I'm trying to understand why a Philadelphia Police Officer would want to attack you for money." Id. at 149:3-5. The plaintiff and his father both state that while off-the-record, Professor Greenstein asked, "Why would a Philadelphia Police Officer lie?"

K. Furey and G. Furey Depositions, Pl. Exhibit F, 148:21-24, 65:9-16. The plaintiff questioned Wolfe's credibility, bringing up his violence-influenced childhood. Pl. Ex. D, 150.

The plaintiff also testified to the behavior and appearance of Wolfe and others to explain his fear that he was being attacked by a gang. Pl. Ex. D, 157, 180. Professor Gumery asked the plaintiff for his definition of a gang and then inquired whether a group of people wearing Hawaiian shirts would be perceived as a gang. Id. at 180-81. During student Malcolm Kenyatta's questioning of the plaintiff, Kenyatta became confrontational, refusing to let the plaintiff clarify until Professor Greenstein interjected, "[l]et him clarify what he thinks he said." Id. at 159:13-14.

Professor Adler, a nursing school professor, questioned the plaintiff on the procedure used when he was brought to the hospital and on his alcohol consumption. Pl. Ex. D, 164-170. Professor Adler stated that according to the hospital record, he "tested positive for alcohol."*fn9 Id. at 183:20. While questioning him, she said "[n]ot everybody can be lying and, you know, be wrong... Hillary heard of conspiracies too." Id. at 185:2-6.

The plaintiff testified to the reason he had a machete in the trunk of his car. He explained that his parents' property in Whitemarsh township was large and he had been clearing vines on the property, so he used the trunk of his car as a toolbox. Pl. Ex. D, 147-48. When driving to the city on the evening of the incident, he believed that he was going only to his friend's off-campus house near Temple, which he did not consider a part of Temple. Id. at 190. The plaintiff knew that he had his father's machete in the trunk of his car and decided to use it as a crowbar when his friend was locked out of his room. Id. At 135, 147. The plaintiff's father, George Furey, corroborated the plaintiff's testimony. He explained that their property had been unoccupied for a number of years and was overgrown. Id. at 222-23. He said that in the spring and fall, they cut through vegetation on the property and it was not uncommon for him and his son to have machetes and other tools in the trunks of their cars. G. Furey described the machete as having an 18-inch blade and a 4 or 5-inch handle. The machete could be purchased for $12 at any gardening center. Id. at 223.

After the plaintiff's own testimony, he called his friends John Fisher, Brian Bairden and Andrew Haff to testify about the events of the night and as character witnesses. Pl. Ex. D, 191; 212; 216. Finally, the plaintiff presented his mother and father as character witnesses. Id. at 223, 232.

Throughout the hearing, the panel was courteous to Wolfe and unchallenging to his testimony, allowing him to speak relatively uninterrupted. The plaintiff tried to question Officer Wolfe about whether he had been at a party, some statements he made at the plaintiff's preliminary hearing, and whether he telephoned Internal Affairs during the plaintiff's hearing. The panel refused to pose these questions to Officer Wolfe. Then the panel aggressively questioned the plaintiff during his testimony. Pl. Ex. D, 49, 55, 79, 82, 100, 159, 162. The plaintiff says in his deposition that during the hearing Officer Wolfe and General Counsel Harrison seemed friendly, and after the panel recommended expulsion, the plaintiff observed them looking at him "laughing, kind of like they were congratulating each other on ...


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