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Wagner v. Holtzapple

United States District Court, M.D. Pennsylvania

April 23, 2015

KEVIN WAGNER, et. al., Plaintiffs,
JULIE A. HOLTZAPPLE, et. al., Defendants

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For K.W., F.E., Individually, and as Class Representatives, B.J., Individually, and as Class Representatives, T.M., Individually, and as Class Representatives, M.G., Individually, and as Class Representatives, I.B., Individually, and as Class Representatives, Plaintiffs: Devon M. Jacob, LEAD ATTORNEY, Jacob Litigation, Mechanicsburg, PA.

For Julie A. Holtzapple, James R. Middleton, Michael C. Griffiths, Degg H. Stark, Susan L. Lantz, Jason D. Friedberg, Lewis A. Marrara, II, Amy A. Badal, Wayne A. Bromfield, Michael A. Smyer, John C. Bravman, Bucknell University, Defendants: Amy C. Foerster, Bucknell University - Office of General Counsel, Lewisburg, PA; Neil J. Hamburg, Hamburg & Golden, P.C., Philadelphia, PA.

For Ernest R. Ritter, III, Jeffrey A. Tice, Justin N. Rosboschil, Ryan E. King, Union County, Pennsylvania, Montour County, Pennsylvania, Defendants: David L. Schwalm, Thomas, Thomas & Hafer, LLP, Harrisburg, PA.

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Matthew W. Brann, United States District Judge.


This case presents a question about the constitutionality of a search and seizure in a college dormitory environment. The primary issue presented cannot be decided by the Court at the motion to dismiss stage of the proceedings, and, consequently, several of the claims will proceed to discovery.


A. Procedural History

Plaintiffs, Kevin Wagner, Fraiser Etsy, and Tony Migliori, are three former students at Bucknell University in Lewisburg, Pennsylvania, who filed a complaint on December 19, 2013.[1] Plaintiffs filed an amended complaint on March 11, 2014, and a second amended complaint on July 23, 2014. ECF No. 36.

Defendants as a collective group acted in concert, but can be classified into two general categories. Defendants Julie A. Holtzapple, James R. Middleton, Michael C. Giffiths, Degg H. Stark, Susan L. Lantz, Jason D. Friedberg, Lewis A. Marrara, II, Amy A. Badal, Wayne A. Bromfield, Michael A. Smyer, John C. Bravman, and Bucknell University are all related to Bucknell and, will hereinafter be collectively referred to as the " Bucknell Defendants" ). The second group of defendants are Ernest R. Ritter, III, Jeffrey A. Tice, Justin N. Rosbosch[2], Ryan E. King, Union

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County, Pennsylvania, and Montour County, Pennsylvania, and are all related to these counties and will hereinafter be referred to collectively as the " County Defendants" .

On August 6, 2014 both sets of defendants filed motions to dismiss the second amended complaint. For the reasons that follow, the motions will be granted in part and denied in part.

B. Motion to Dismiss Standard

When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), a court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). However, " the tenet that a court must accept as true all of the [factual] allegations contained in the complaint is inapplicable to legal conclusions." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal citations omitted). In ruling on such a motion, the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000).

A complaint should only be dismissed if, accepting as true all of the allegations in the amended complaint, plaintiff has not pled enough facts to state a claim to relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). " Determining whether a complaint states a plausible claim for relief will . . . be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 663-664.

" In considering a Rule 12(b)(6) motion, we must be mindful that federal courts require notice pleading, as opposed to the heightened standard of fact pleading." Hellmann v. Kercher, *4, 2008 WL 1969311 (W.D. Pa. May 5, 2008) (Lancaster, J.). Federal Rule of Civil Procedure 8 " 'requires only a short and plain statement of the claim showing that the pleader is entitled to relief,' in order to 'give the defendant fair notice of what the...claim is and the grounds on which it rests,'" Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1964 (citing Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). However, even under this lower notice pleading standard, a plaintiff must do more than recite the elements of a cause of action, and then make a blanket assertion of an entitlement to relief under it. Hellmann, supra. Instead, a plaintiff must make a factual showing of his entitlement to relief by alleging sufficient facts that, when taken as true, suggest the required elements of a particular legal theory. Twombly, 127 S.Ct. at 1965. " [W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - - but it has not " shown" - - " that the pleader is entitled to relief." Iqbal, supra , citing Fed.R.Civ.P. 8(a).

The failure-to-state-a-claim standard of Rule 12(b)(6) " streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a " dispositive

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issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed " without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327

C. Allegations in the Complaint

The alleged facts as set forth by Plaintiffs in the second amended complaint are as follows. Plaintiffs Kevin Wagner, Fraiser Etsy, and Tony Migliori were all Bucknell University students who resided in a fraternity house located at 64 University Avenue, Lewisburg, Union County, Pennsylvania at the time period in question.

The Bucknell Defendants. Defendant Bucknell University is a private, liberal arts university located in Lewisburg, Pennsylvania. Julie A. Holtzapple, James R. Middleton, Michael C. Griffiths, and Degg H. Stark are public safety officers. Jason D. Friedberg is employed as Bucknell's Chief of Police. Susan L. Lantz and Lewis A. Marrara, II are both Deans of Students. Amy A. Badal is an Assistant Dean of Students. Wayne A. Bromfield was General Counsel of Bucknell as of the date of the incident in question. Michael A. Smyer is the Provost. John C. Bravman is the President.

The County Defendants. Ernest R. Ritter, III is the Sheriff of Union County, Pennsylvania. Jeffrey A. Tice and Justin M. Rosbosch are Union County Deputy Sheriffs. Ryan E. King is a Montour County, Pennsylvania Deputy Sheriff. Defendants Union and Montour counties are located in north central Pennsylvania and maintain control over their respective Sheriff's Offices.

Plaintiffs allege that all of the named individual defendants were acting under color of state law and are sued in their respective personal capacities. Moreover, Plaintiffs allege that the Bucknell University defendants, although employed by a private employer, were acting under color of state law, a claim that the Bucknell Defendants, for the most part, do not dispute.

Taking the facts alleged in the complaint as true, the narrative that unfolds is as follows. On February 16, 2012, Defendants Holtzapple, Middleton, Griffiths, Stark, Ritter, Tice, Rosbosch and King entered the Kappa Sigma Alphi Phi fraternity house, where the three Plaintiffs resided, and set off the fire alarm. The residents of the building exited the building. Defendants used the " C-CURE Access Control System[3] to lock the doors so that the Plaintiffs...could not renter the buildings." ECF No. 36 at 20. Once inside, these Defendants, along with search dogs, searched the building for three hours. Plaintiffs allege that the Defendants conducted a search that exceeded a " plain sight" search, in that unopened doors were opened, bookbags searched, dresser drawers searched and the space underneath beds was searched. The search resulted in the discovery of a small amount of marijuana, " a couple of bongs," a " grinder," a few marijuana piper, a hunting knife, a BB gun, a slingshot, and a lock picking set. Plaintiffs were never prosecuted criminally, but received internal discipline from Bucknell that required payment of a fine and community service, and, for one Plaintiff, three psychiatric sessions.

Like most universities, Bucknell has a Student Handbook (hereinafter " the handbook" ). Plaintiffs assert that the handbook

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was not a negotiable document, but was a " take it or leave it" proposition; specifically, they allege that it was a contract of adhesion. ECF No. 36 at 13 ¶ ¶ 44 and 46. The salient provisions of the handbook provide as follows:

Bucknell requires all undergraduate students to live on campus in a University-owned facility or University-related fraternity house unless they receive formal approval to reside off campus or commute from home.
Campus residential facilities are the same as any private facility and cannot be entered by police without the occupant's permission or a legal search warrant.
A private room may be opened by an RA or member of the University staff if there is reasonable cause to suspect violation of the law or Student Code of Conduct is occurring.
The University reserves the right to enter your room in an emergency or if there is reasonable cause to conclude that violation of University policy, or state or federal law, is occurring.
Public Safety officers may enter your room any time they believe a crime or violation has been, is about to be, or is being committed. In most circumstances the officer will knock and announce that " Bucknell Public Safety is requesting entry." However, exigent circumstance dictate both internally and externally that an officer can key into your room without waiting to be granted access. This includes failure to answer your door when someone is believed to be inside, at which time officers are required to enter to check on the persons' well-being.
If you are not in your room, a Public Safety officer will enter the room, usually with another officer or RA, to witness the room entry.
Room search are conducted if there is reasonable suspicion to believe a crime or violation has been, is about to be, or is being committed.
A search following a crime committed in a room in plain sight of an officer can only involve the areas of plain sight. Public Safety officers may not search any closed areas (such as drawers, closets or bags) without permission of the student, permission from the Dean of Students, and/or a search warrant.
Illegally possessed alcohol, drugs, firearms, and fireworks can be confiscated from dorm rooms and destroyed. Discovery of such items may result in internal and/or external charges being filed.
In the event of an emergency, or if there is reasonable cause to believe that a violation of University policy or state or federal law is occurring or has occurred or exigent circumstances exist, Bucknell reserves the right, exercised through Department of Public Safety officers or other duly authorized University officials, to enter any University-owned or University-supervised residence unit, room or area to conduct a " plain view search" of the room or space, including the refrigerator, or to take appropriate action in response to an emergency whether or not the occupant(s) is present. A full search of a residence unit, room or area may be authorized by the Dean of Students or his/her designee when there is a reason to believe that there is contraband or ongoing illegal activity or a violation of University regulations, policy or procedures in that unit, room or area, or there exists a danger to the building or the safety of its occupants.
Periodic inspections are made by members of the Facilities or Housing Services or Residential Education staffs to determine the need for repairs, redecorating

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or to evaluate the general condition, safety, and maintenance of the room. Unless otherwise specified in the residence hall contract, notifications of such inspections must be given 24 hours in advance.

It is both a criminal and University offense to tamper with a fire alarm or smoke detector without cause or to damage or unnecessarily discharge a fire extinguisher.
The respondent and the aggrieved party generally have the right to be assured that his/her involvement in a Student Code of Conduct violation or identity will not be disclosed by the University except as required by law, to anyone other than those involved in the University conduct process unless prior notification is given by both students. There are three possible exceptions: 1) if a second or serious alcohol transgression or four (4) alcohol points are involved, parents/guardians can be notified; 2) if illegal drugs are involved, both parents/guardians and legal authorities can be informed; and 3) if a party directly or indirectly involved in the case misrepresents what happened in the hearing process or outcome, the University reserves the right to provide publicly a truthful account of the situation.
Bucknell communicates with the student directly and releases information about a student to others, including parents, only with the student's consent.
The release by University personnel of other information, including communications to parents from academic deans, individual faculty members, the student's faculty adviser, and staff members of the Office of the Deans of Students, requires the consent of the student prior to each release.
When the University believes it appropriate in its sole discretion, the University will release to a student's parent or legal guardian information regarding that student's violation of any federal, state or local law or any rule or policy of the University governing the use or possession of alcohol or a controlled substance if (a) the student is under the age of 21 and (b) the University determines that the student has committed a disciplinary violation with respect to that use or possession. Student files are maintained in the Dean of Students' Office from the time of a student's first enrollment until five (5) years after graduation or departure from the University. Included in these records are behavioral incidents; student work history; appointment to committees, boards, task forces, etc.; honors; the Summary Data Form the student completes during senior year; and other materials. It is on the basis of these records that the Deans of Students complete various kinds of recommendations and references. Information is not generally released to third parties without the student's permission. There are two main areas of exception: parents will be notified when a student is involved in an initial alcohol violation that is relatively serious or any second alcohol infraction; and information is shared with the legal authorities upon receipt of a court order. Students should understand that infractions contained in a student's record may be reported without interpretation.
Records of conduct proceedings are maintained in the individual student's file normally for a period of nine (9) years - four (4) active undergraduate years plus five (5) additional years [or five (5) years following the date of last attendance.]
Records maintained by the Department of Public Safety may be maintained indefinitely

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and will be discoverable if a check of records is conducted.

ECF No. 36 at 13-17

The motions to dismiss moved to dismiss all nine counts of the second amended complaint, and additionally, the County Defendants included a motion to strike. Each count and the motion to strike will be addressed in turn.

D. Analysis

1. Count I: Plaintiffs v. Individual Defendants Violation of the Fourth Amendment to the Federal Constitution asserted pursuant to 42 U.S.C. § 1983

In order for plaintiffs to prevail under 42 U.S.C. § 1983, they must establish two elements: first, that the conduct complained of was committed by a person acting under color of state law; and second, that the conduct deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Kost v. Kozakiewicz, 1 F.3d 176, 184 (3d Cir. 1993).

The County Defendants argue that Count I should be dismissed as Plaintiffs waived their Fourth Amendment protections based on their assent to governance by the Bucknell Student Handbook, and, additionally, that they are entitled to qualified immunity. ECF No. 49 at - 14-17. The Bucknell Defendants assert the same two arguments, and, additionally, make a third argument of good faith reliance on the advice of counsel defense. ECF No. 51 at 11-20. The Bucknell Defendants are able to make the qualified immunity argument as they have acquiesced to the assertion that they acted under color of state law as to the Fourth Amendment claims

Plaintiffs argue that to survive a motion to dismiss, they must have pled only that a search was violative of their Constitutional rights, because there was no consent, no warrant, and no exception to the warrant requirement, i.e. neither probable cause nor exigent circumstances. Further, plaintiffs argue that the Bucknell Defendants are not entitled to qualified immunity because Fourth Amendment law is well settled and it was unreasonable to rely on legal advice that the search was allowable.

Each argument will be taken in turn. First, the assertion that Count I should be dismissed generally as not a constitutionally violative search, and second, that even if it was a constitutionally violative search, the Defendants should be immune from liability.

A. The search

The Fourth Amendment provides " [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. " U.S. CONST. amend. IV.

" [T]he Fourth Amendment protects people, not places." Katz v. United States, 389 U.S. 347, 351, 88 S.Ct. 507, 511, 19 L.Ed.2d 576 (1967). " [W]hat he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected." Id. " Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Id. at 359. A search to which an individual consents meets Fourth Amendment requirements. See id. at 357.

Case law with regard to searches and seizures of dormitories has not developed in a universal manner, as the law surrounding the student-university relationship has changed considerably in a relatively short period of time. ...

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