United States District Court, W.D. Pennsylvania
GRACE G. SIMMS, Plaintiff,
PENNSYLVANIA STATE UNIVERSITY-ALTOONA, DR. L. JAY BURLINGAME, and DR. ROBERT L. MATCHOCK, Defendants.
GIBSON UNITED STATES DISTRICT JUDGE.
before the Court is the Motion to Dismiss Plaintiff's
Complaint, In Part, filed by Defendant Pennsylvania State
University, Altoona ("Perm State Altoona") (ECF No.
The Motion has been fully briefed (see ECF Nos. 9,
12) and is ripe for disposition. For the reasons stated
below, the Court will grant Perm State
Court has subject matter jurisdiction over Simms' claims
under 28 U.S.C. § 1331. Venue is proper under 28 U.S.C.
§ 1391(b) because a substantial portion of the events
giving rise to the claims occurred in the Western District of
is a student at Perm State, Altoona. (ECF No. 1 at ¶ 8.)
Simms is an African American female. (Id. at ¶
12.) Starting in March 2016, Sarah Ismail, a fellow Perm
State Altoona student, began a cyberbullying campaign
targeted at Simms. (Id. at 13.) Specifically, Ismail
made threatening messages and posts directed at Simms.
evening of March 29, 2016, Ismail banged on Simms' door
and recorded a "Snapchat story." (Id. at
¶ 14.) For approximately ten minutes, Ismail harassed
Simms and bullied her through social media. (Id. at
¶ 15.) Ismail's harassment and cyberbullying
humiliated Simms and caused her to experience negative
thoughts about herself. (Id.) This incident was so
disturbing that Simms' neighbors came by to check on her
wellbeing. (Id.) It also caused Simms to contact her
parents, who advised her to notify the police if Ismail ever
harassed her again. (Id. at ¶ 16.)
that evening, Simms went to study in the library.
(Id. at ¶ 17.) When she arrived, a fellow
student informed her that Ismail was also in the library.
(Id.) Simms approached Ismail and stated,
"Sarah I would appreciate if you would please delete the
videos of me from your Snapchat account and if you have an
issue with me I would respectfully try to resolve the issue
[sic]." (Id. at ¶ 18.) Ismail, who
appeared to be intoxicated, responded by yelling and swearing
at Simms. (Id.)
outburst caused Erica Marbury, another student, to try to
calm Ismail down. (Id. at ¶ 19.) Ismail
exclaimed, "What the fuck do you have to do with
this?" (Id.) Ismail then spit on and attacked
Marbury. (Id.) Simms then intervened "to
prevent them from fighting." (Id. at ¶
the altercation ended, Marbury called the police and reported
Ismail's attack on her (Id.) Simms informed the
police about Ismail's conduct leading up to the incident
in the library. (Id.) The police said they would
document Simms' complaint. (Id.)
days later, Simms received notification that she would face
disciplinary and criminal charges. (Id. at ¶
21.) Perm State Altoona investigated the incident pursuant to
the Code of Conduct and Student Conduct Procedures.
(Id. at ¶ 22.) During the investigation, Simms
and Marbury told the police that Simms did not act as the
aggressor, that Ismail provoked the incident when she spat on
Marbury, and that Ismail had harassed Simms prior to the
library incident. (Id.)
April 7, 2017, Perm State Altoona police charged Simms with
three criminal counts: "simple assault" (a
grade-two misdemeanor), "conspiracy-disorderly
conduct" (a grade-three misdemeanor), and
"harassment" (a summary offense). (Id. at
¶ 25.) These charges subjected Simms to possible
the Penn State Altoona Office of Student Conduct charged
Simms with two "major level violations" of the
Student Conduct Policy: "harming or attempting to harm
self of [sic] another" and "harassment-other."
(Id. at ¶ 26.)
Office of Student Conduct notified Simms that she was
required to attend a University Conduct Board hearing on May
19, 2016. (Id. at ¶ 27.) The notice informed
Simms that she had (1) "the right to be informed in
writing of all changes at least five business days"
before the hearing and (2) the right to waive this five-day
notice provision; (3) "the right to question
witnesses" who participate at the hearing in person or
by telephone; (4) "the right to review available
evidence and documentation" before the hearing; (5)
"the right to appeal the hearing decision"; and (6)
the right to receive a hearing report after the hearing,
"including findings and sanctions." (Id.)
hearing took place as scheduled. (Id. at ¶ 28.)
The Conduct Board presiding over the hearing consisted of the
"the Chancellor and Dean of the campus, two faculty
advisors and a student advisor." (Id.) Every
member of the Conduct Board is a white Caucasian.
the beginning of the hearing, the Board had "already
made a predetermined decision to suspend" Simmons
because she was African American. (Id. at ¶
29.) The Conduct Board treated Simms in a "disrespectful
and dismissive manner, " which was demonstrated by the
members' body language and how they questioned Simms and
her witnesses. (Id. at ¶ 30.)
accordance with the University Code of Conduct and Student
Policies, Simms was allowed to utilize the assistance of an
attorney when preparing for the Conduct Board hearing but her
attorney was not permitted to "actively participate in
the hearing itself." (Id. at ¶ 31.)
Because of the ongoing criminal investigation, Simms
"faced a troubling decision"; testify at the
Conduct Board hearing without the benefit of counsel and risk
jeopardizing her criminal case or remain silent and allow the
Conduct Board to hear uncontroverted evidence against her.
(Id. at ¶ 33.)
Simms chose to testify before the Conduct Board.
(Id. at ¶ 34.) The Conduct Board uses the
preponderance of the evidence standard when adjudicating
alleged violations of the Student Code of Conduct.
(Id. at ¶ 36.) According to Simms, the
"overwhelming evidence" presented established that
Simms was innocent and "no evidence controverted"
Simms' testimony that she never touched Ismail during the
incident in the library. (Id. at ¶¶ 37,
40.) However, the Conduct Board unanimously found that Simms
was responsible for the charges against her. (Id. at
¶ 37.) As punishment, the Conduct Board suspended Simms
through the 2017 Spring Semester, ordered Simms to reimburse
Ismail's "out of pocket" expenses, and required
Simms to complete counseling prior to rematriculating.
(Id. at ¶ 38.)
12, 2016, Simms' criminal charges were dropped.
(Id. at ¶ 43.)
filed her five-count Complaint before this Court on October
26, 2017. (ECF No. 1.) After the Defendants filed their
Motion to Dismiss, Simms stipulated to dismiss all claims
against Burlingame and Matchock (ECF No. 12 at 6), her 42
U.S.C. § 1981 claim (Count IV) (id. at 9), and
her breach of contract claim (Count V)
the following claims remain against Perm State Altoona:
procedural due process under the Fourteenth Amendment (Count
I); substantive due process under the Fourteenth Amendment
(Count II); and unlawful discrimination -race/color, under
Title VI (Count III).
State Altoona filed its Motion to Dismiss on February 1,
2018. (ECF No. 8.) Perm State Altoona moves to dismiss Count
I (procedural due process), Count II (substantive due
process), and Count III to the extent it asserts a Title VII
claim. (See id.)
Legal Standard A. Motion to Dismiss
complaint may be dismissed under Federal Rule of Civil
Procedure 12(b)(6) for "failure to state a claim upon
which relief can be granted." Connelly v. Lane
Const. Corp., 809 F.3d 780, 786 (3d Cir. 2016). But
detailed pleading is not generally required. Id. The
Rules demand only "a short and plain statement of the
claim showing that the pleader is entitled to relief" to
give the defendant fair notice of what the claim is and the
grounds upon which it rests. Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007) (quoting Fed.R.Civ.P.
the pleading regime established by Twombly and
Iqbal, a court reviewing the sufficiency of a
complaint must take three steps. First, the court must
"tak[e] note of the elements [the] plaintiff must plead
to state a claim." Ashcroft v. Iqbal, 556 U.S.
662, 675 (2009). Second, the court should identify
allegations that, "because they are no more than
conclusions, are not entitled to the assumption of
truth." Id. at 679; see also Burtch v.
Milberg Factors, Inc.,662 F.3d 212, 224 (3d Cir. 2011)
("Mere restatements of the elements of a claim are not
entitled to the assumption of truth.") (citation
omitted). Finally, "[w]hen there are well-pleaded
factual allegations, [the] court should assume their veracity
and then determine whether they plausibly give rise to an
entitlement to relief." Iqbal, 556 U.S. at 679.
"A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged." Id.; see ...