DEMPSEY, : Plaintiffs - A Voice for Male Students
Transcription
DEMPSEY, : Plaintiffs - A Voice for Male Students
IN THE UNITED STATE DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA REED C. DEMPSEY, and SHELLEY DEMPSEY, Plaintiffs v. : : : : : BUCKNELL UNIVERSITY, JOHN C. : BRAVMAN, LEWIS A. MARRARA, : DANIEL C. REMLEY, AMY A. : BADAL, LINDA LOCHER, KARI M. : CONRAD, MICHAEL SMYER, : CHIEF JASON FRIEDBERG, : OFFICER JULIE HOLTZAPPLE, : OFFICER DARRELL FISHER, : OFFICER ROBERT ULMER, : OFFICER JAMES MIDDLETON, : OFFICER JED RISHEL, DETECTIVE : JEFFREY ETTINGER, CAPTAIN : DOUGLAS LAUVER, and : ANTHONY J. VOCI, JR., : Defendants : NO: 4:11-CV-1679 CHIEF JUDGE KANE CIVIL ACTION - LAW JURY TRIAL DEMANDED BRIEF IN OPPOSITION TO BUCKNELL UNIVERSITY’S MOTION TO DISMISS TABLE OF CONTENTS Page: TABLE OF AUTHORITIES.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii I. STATEMENT OF FACTS:.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. ARGUMENT:. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 A. Standard of Review.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 B. Bucknell’s police officers violated R.D.’s Fourth Amendment rights when they arrested him without probable cause.. . . . . . . . . . . 17 1. The arrest and charging of R.D. was clearly state action.. . . . 17 2. Plaintiffs have alleged each officers’ involvement. . . . . . . . . 22 3. The officers arrested R.D. without probable cause. . . . . . . . . 24 4. No reasonable officer would have believed K.S... . . . . . . . . . 29 C. The officers violated R.D.’s Fourth Amendment rights when they prosecuted him without probable cause. . . . . . . . . . . . . . 31 D. Bucknell and the officers’ supervisors are responsible for R.D.’s arrest and prosecution. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 E. R.D. has stated a state law claim for false imprisonment.. . . . . . . . . 37 F. The Bucknell officials conspired with each other, K.S. and her attorney, Voci, to arrest and prosecute R.D. without probable cause... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 III. G. Bucknell officials defamed R.D. when they falsely named him and portrayed him as a sex offender. . . . . . . . . . . . . . . . . . . . . . . . . . 40 H. Bucknell officials committed fraud when they misled R.D. about exculpatory evidence to cover-up their mishandled investigation. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48 I. Bucknell officials conspired with Voci to commit fraud. . . . . . . . . . 51 J. Bucknell breached its contract with R.D. when it violated its Student Handbook.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51 K. Bucknell discriminated against R.D. as a male student accused of sexually assaulting a female student. . . . . . . . . . . . . . . . 55 L. Bucknell is liable for negligence. . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 M. Bucknell failed to exercise reasonable cause in its hiring, training, supervision and retention of its employees. . . . . . . . . . . . . 59 N. Bucknell Defendants conspired to interfere with R.D.’s contract.. . 59 O. Bucknell officials intentionally inflicted emotional distress on R.D.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 P. Bucknell officials conspired with each other and Voci to cause emotional distress to R.D... . . . . . . . . . . . . . . . . . . . . . . . . . . . 63 Q. Bucknell caused emotional distress to R.D.’s mother, Shelley... . . . 63 CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ii TABLE OF AUTHORITIES Statutes and Rules: Page(s): 22 P.S. § 501. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 22 P.S. § 501(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 22 P.S. § 501(c). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 71 P.S. § 646. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 71 P.S. § 646.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Cases: Albright v. Oliver, 510 U.S. 266, 277-80 (1994). . . . . . . . . . . . . . . . . . . . . . . . . . 33 Ashcroft v. Iqbal, 556 U.S. 662 (2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 Banyas v. Lower Bucks Hosp., 437 A.2d 1236, 1239 (1981). . . . . . . . . . . . . . . . . 61 Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 1969 n. 8 (2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 56 Bennett v. Norban, 151 A.2d 476 (1959). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 Berg v. Consolidated Freightways, Inc., 421 A.2d 831 (1980). . . . . . . . . . . . . . . 45 Best v. County of Northumberland, 4:11-CV-00896, 2011 WL 6003853, at *7 (M.D. Pa. Nov. 30, 2011) . . . . . . . . . . . . . . . . . . . . . . . 39 Beverly Enterprises, Inc. v. Trump, 182 F.3d 183, 187 n. 1 (3d Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 iii Blanche Road Corp. v. Bensalem Tp., 57 F.3d 253, 263 (3d Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Borrell v. Weinstein Supply Corp., CIV. A. 94-2857, 1994 WL 530102, at *3 (E.D. Pa. Sept. 27, 1994) . . . . . . . . . . . . . . . . . . . . . . . . 44 Boyle v. Torres, 756 F. Supp. 2d 983, 995 (N.D. Ill. 2010). . . . . . . . . . . . . . . . . . 20 Bragle v. Revell, 674 F. Supp. 13, 14 (W.D. Pa. 1987). . . . . . . . . . . . . . . . . . . . . 46 Breslin v. Dickinson Twp., 1:09-CV-1396, 2010 WL 3293337 (M.D. Pa. Aug. 19, 2010).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. Ct. 2000). . . . . . . . . . . . . . . . . 47 Bryant v. Vernoski, No. 11-263, 2011 WL 4400820, at *4-*5 (M.D. Pa. Sept. 1, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 Chicarella v. Passant, 494 A.2d 1109, 1112 (1985). . . . . . . . . . . . . . . . . . . . . . . 47 Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 City of Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989).. . . . . . . . . . . . . . . . . . 37 City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988). . . . . . . . . . . . . . . . . . . 34 Clemente v. Espinosa, 749 F. Supp. 672, 676 n. 4 (E.D. Pa. 1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 47 Cuturilo v. Jefferson Reg'l Med. Ctr., CIV. 10-1723, 2011 WL 2941031, at *4 (W.D. Pa. July 20, 2011). . . . . . . . . . . . . . . . . . . . . . . . 42 D'Errico v. DeFazio, 763 A.2d 424, 432 (Pa. Super. Ct. 2000). . . . . . . . . . . . . . . 44 iv Deangelo Bros., Inc. v. Platte River Ins. Co., CIV.A. 3:09-CV-1198, 2010 WL 2635983, at *8 (M.D. Pa. June 29, 2010) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 60 DeCarlo v. Joseph Horne & Co., 251 F. Supp. 935, 937 (W.D. Pa. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 33 Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1327 (E.D. Pa. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Flagg v. State Sys. of Higher Educ., 904 A.2d 1004, 1008 n. 3 (Pa. Commw. Ct. 2006).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Foley v. Connelie, 435 U.S. 291, 297 (1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Fowler v. 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Supp. 2d 216, 221-22 (M.D. Pa. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 Johnson v. Sch. Dist. of Philadelphia, CIV. A. 06-4826, 2008 WL 3927381, at *8 (E.D. Pa. Aug. 21, 2008). . . . . . . . . . . . . . . . . . . . . . . . 33 Joyce v. Alti Am., Inc., CIV. A. 00-5420, 2001 WL 1251489, at *3 (E.D. Pa. Sept. 27, 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . 18 Karr v. Lower Merion Twp., 582 F. Supp. 410, 413 (E.D. Pa. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 Kazatsky v. King David Memorial Park, 515 Pa. 183, 527 A.2d 988, 995 (Pa.1987).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 62 Keenan v. City of Philadelphia, 983 F.2d 459, 468-69 (3d Cir. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 Kimberg v. Univ. of Scranton, 3:06CV1209, 2007 WL 405971, at *3 (M.D. Pa. Feb. 2, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 Kline v. EDS Relocation & Assignment Services, 1:CV-08-0980, 2008 WL 4822026, at *3 (M.D. Pa. Nov. 4, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 Krochalis v. Ins. Co. of N. Am., 629 F. Supp. 1360, 1368 (E.D. Pa. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44 Landsman v. Gustin Stone Supply, Inc., 307-CV-00202, 2007 WL 2068223, *3 (M.D. Pa. July 17, 2007). . . . . . . . . . . . . . . . . . . . . . . . . . 58 Leshko v. Servis, 423 F.3d 337 (3d Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 vi Lippay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993). . . . . . . . . . . . . . . . . 30, 32 Maniaci v. Georgetown Univ., 510 F. Supp. 2d 50, 69-70 (D.D.C. 2007) .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Marcone v. Penthouse Intern. Mag. for Men, 754 F.2d 1072 (1985).. . . . . . . . . . 47 Mary V. v. Pittsburgh Pub. Sch. Frick Middle Sch., 9-1082, 2010 WL 562909, at *2 (W.D. Pa. Feb. 17, 2010) .. . . . . . . . . . . . . . . . . 56 Mascarini v. Quality Employment Services & Training, 1:10-CV-1546, 2011 WL 332425, at *8 (M.D. Pa. Jan. 31, 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 62 McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 965 (M.D.N.C. 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30, 36, 50, 51 Monroe v. Pape, 365 U.S. 167, 184 (1961). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Novotny v. Great Am. Fed. Sav. & Loan Assn., 584 F.2d 1235, 1262 (3d Cir.1978), vacated on other grounds, 442 U.S. 366 (1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 O'Hara v. Hanley, CIV.A. 08-1393, 2011 WL 915776, at *7 (W.D. Pa. Mar. 15, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Pansy v. Preate, 870 F. Supp. 612, 629 (M.D. Pa. 1994) aff'd, 61 F.3d 896 (3d Cir. 1995).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) .. . . . . . . . . . . . . . . . . . 35 Petaccio v. Davis, 76 F. App.x 442, 445 (3d Cir. 2003).. . . . . . . . . . . . . . . . . . . . 28 Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 56 vii Piazza v. CT Corp., No. 3:09-CV-1087, 2011 WL 4460621, at *8 (M.D. Pa. Sept. 26, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Purcell v. Ewing, 560 F. Supp. 2d 337 (M.D. Pa. 2008). . . . . . . . . . . . . . . . . . . . 45 R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 697 (Pa. Super. Ct. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 Randall v. Prince George's County, 302 F.3d 188, 202-04 (4th Cir.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 Rapid Circuits, Inc. v. Sun National Bank, Civil Action No. 10-6401, 2011 WL 1666919, at *11 (E.D.Pa. May 3, 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Reager v. Williams, 3:08CV2035, 2009 WL 3182053, at *5 (M.D. Pa. Sept. 25, 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 Remick v. Manfredy, 238 F.3d 248, 263 (3d Cir. 2001). . . . . . . . . . . . . . . . . . . . . 60 Rishell v. RR Donnelley & Sons Co., CIV.A. 06-4782, 2007 WL 1545622, at *3 (E.D. Pa. May 24, 2007) . . . . . . . . . . . . . . . . . . . . . 44, 45 Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 638 (6th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 20 Roskos v. Sugarloaf Twp., 295 F. Supp. 2d 480, 492 (M.D. Pa. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 44 viii Rutt v. Bethlehems Globe Publishing Co., 484 A.2d 72 (1984). . . . . . . . . . . . . . . 41 S. Cross Overseas Agencies, Inc. v. 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Pool of Am., Inc., CIV.A. 93-2055, 1993 WL 276859, at *5 (E.D. Pa. July 20, 1993) . . . . . . . . . . . . . . . . . . . . . . . . . 47 Stambaugh’s Air Serv., Inc. v. Susquehanna Area Regional Airport Auth., 1:00-CV-660, 2006 WL 709229, at *5 (M.D. Pa. Mar. 16, 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Stefanowicz v. Bucknell, 10-CV-2040, 2010 WL 3938243, at *3 (M.D. Pa. Oct. 5, 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 56, 64 Stokes v. Nw. Mem’l Hosp., 1989 WL 84584, at *4 (N.D. Ill. July 24, 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 Swartley v. Hoffner, 734 A.2d 915, 919 (Pa. Super. Ct.1999). . . . . . . . . . . . . . . . 52 ix Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). . . . . . . . . . . . . . . 24, 25, 28, 30 Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa. 1997).. . . . . . . . . . . . . . . . . . 41 Other Authorities: Restatement (2d) of Torts § 566. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 x I. STATEMENT OF FACTS:1 At approximately 2:00 a.m. on Sunday, September 5, 20102, K.S. initiated “play-fighting” with R.D.3 in his dorm room, which was friendly “horsing-around.” ¶¶ 23-27. Shortly thereafter, they returned to the hallway. ¶ 40. K.S. started slapping R.D. in the face, forcing him to grab her wrists. ¶¶ 41, 45. When R.D. released her, she punched him in the groin. ¶¶ 45-46. R.D. gave her a “bear hug” to stop her and K.S. then started thrashing her body around, causing them to fall. ¶¶ 47-48. Several students witnessed this. ¶ 48. The Resident Advisor (“RA”) approached and asked what happened. ¶¶ 49, 51. Instead of answering him, K.S. ran up and slapped R.D. again. ¶ 51. The RA grabbed her to restrain her. ¶ 52. K.S. then started yelling, repeatedly calling R.D. “pussy licker” and “pussy lips.” ¶ 53. The RA noticed her red marks and that they were rug just burns from the fall. ¶ 54. 1 All paragraph citations (¶) are to the Complaint. 2 All dates in the Complaint are in 2010. Despite repeated references R.D.’s status as a student (that he lived on campus, paid tuition, had a contract with Bucknell, attended classes, was subject to a student disciplinary proceeding, was suspended, was arrested twice by Bucknell police, etc.), Bucknell claims that the Complaint never states that he is a student of Bucknell (Bucknell Br. p. 1); to the contrary, according to the Complaint, R.D. is “a male student at Bucknell University...” ¶ 534. 3 Later when R.D. was refilling his water pitcher, K.S. smacked him and ran away laughing as he flicked water at her. ¶¶ 55-57. When the RA again asked her what happened, she shouted that R.D. could suck her “big fat black cock.” ¶ 58. K.S. then said that R.D. tackled her, and she “kicked [him] in the nuts” multiple times. ¶ 59. Both K.S. and R.D. said that they were just playing around. ¶¶ 61-62, 64. The RA asked R.D. to go to his room, but K.S. said that he could stay. ¶ 62. K.S. asked the RA to shake her hand and promise not to file a report. ¶¶ 60, 63. Later that night, K.S. told another student that people would see her rug burns and realize that she had been drinking the night before a field hockey game. ¶ 68. Ultimately, she feared that she would be kicked off of the team. ¶ 69. Later that day, K.S. told her teammates that she banged herself on the ceiling above her loft. ¶ 70. After the game, K.S. embellished her story, telling her coach that R.D. assaulted her. ¶¶ 72-73. K.S.’s father was at the game and took photographs of scrapes on her face, wrist, shoulder and knee. ¶ 79. The RA filed a report stating that K.S. slapped R.D. in the face, and that the RA had to restrain her to stop her from hitting R.D. ¶¶ 81-82, 365, 368, 370, 373. Everyone, including K.S., said that they had only been play-fighting. ¶¶ 369, 370, 2 373. K.S. made him “pinky swear” not to file a report. ¶¶ 370-371, 373. The RA believed everything was fine and the fall was accidental. ¶¶ 370, 372, 373. K.S. spoke with Dean Amy Badal and for the first time said that R.D. sexually assaulted her. ¶ 84. Dean Badal told her to report the incident to the Bucknell Department of Public Safety. ¶ 85. K.S. and Dean Badal met with Public Safety Officers Julie Holtzapple, Darrell Fisher and Robert Ulmer. ¶ 87. K.S. said that R.D. held her down and then pinched and punched her in inappropriate places. ¶¶ 88-92. K.S. said three students witnessed him pinch and punch her in inappropriate places and named one. ¶ 93. She said she screamed at R.D. that he would not take advantage of her like he did Student E, telling the officers that R.D. took advantage of Student E that summer. ¶¶ 97-98. K.S. said she repeatedly punched and smacked R.D. in the face until she could break free and run into the hallway. ¶ 94. She said that the attack lasted about 20 minutes. ¶ 95. She claimed that, in the hallway, she tried to walk away but R.D. grabbed her, tackled her and dragged her, and that she struggled on the ground with her arms pinned behind her back. ¶¶ 99-101. She said, “while [R.D.] was on top of me, he was getting off to it.” ¶ 102. She denied that the RA witnessed anything or asked her what happened. ¶¶ 103-105. K.S. said some of her bruises were from field hockey and 3 pointed those out to the officers, but the officers never documented which bruises were from field hockey. ¶ 106-107. Holtzapple told K.S. that she was the bravest person the officer knows, that R.D. “was born this way,” and that “you could have saved somebody’s life in the future.” ¶¶ 108-109. Badal agreed, and said that she and K.S. had already discussed that. ¶ 109. Fisher joined in that R.D. “obviously has a problem.” ¶ 110. K.S. went to the hospital for a medical exam with Badal, Holtzapple and Fisher. ¶ 111. Photos were taken. ¶ 112. The exam indicated that her skin was “normal” with moderate bruises. ¶ 113. Overall, her condition was good. ¶ 116. Late that night, Officers Ulmer and Jed Rishel picked R.D. up and drove him to Public Safety. ¶ 120. R.D. gave the officers a typed up statement. ¶ 121. After Ulmer Mirandized R.D. his Miranda rights, and R.D. told Ulmer and Fisher what actually happened. ¶¶ 122-123. The report from this interview misrepresents what R.D. said and instead adopts portions of K.S.’s interview. ¶ 124. On Sunday, September 5 and Monday, September 6 (Labor Day), the Bucknell police obtained written and oral statements from at least 8 witnesses. ¶ 125. The RA also gave the officers his report. ¶ 373. The witnesses refuted K.S.’s story and supported R.D.’s statement that they were just “play-fighting.” ¶¶ 127-128. In fact, 4 the witnesses generally named K.S. as the aggressor. ¶ 128.4 The students informed the officers that they only observed friendly play-wrestling and that it was not sexual. ¶¶ 223, 230, 317, 319-21, 324, 327-328, 331, 343-344, 351, 358-360. No student witnessed R.D. make any sexual advances, hit her in the head or vagina, call her any derogatory names or engage in any other questionable behavior. ¶¶ 325-327, 329, 343, 384, 392-393. Students standing outside R.D.’s room told the officers that they did not hear K.S. scream “stop,” “get off me,” or anything about assaulting Student E. ¶¶ 333, 343, 345-346, 351, 386, 388. Students said that, if someone had been screaming, they would have heard it and come in to help. ¶ 332, 334, 343, 345-346, 351. Students said that, when R.D. and K.S. returned to the hall, they were still joking and laughing. ¶¶ 224, 231, 347, 351. The students explained that there was no reason to believe anything improper had taken place, and K.S. had no bruising or marks on her body when she left R.D.’s room. ¶¶ 335, 343, 348, 351, 387. Students recalled that, R.D. tried to stop play-fighting, but K.S. started repeatedly slapping him in the face. ¶¶ 225, 236, 241, 337-338, 343, 349, 351. Students told the officers that the fall that led to K.S.’s rug burn was simply a “loss of balance” resulting from K.S. 4 391. After one student filled out a witness report, K.S. kept apologizing to him. ¶ 5 flailing around and still trying to hit him as R.D. tried to stop her. ¶¶ 226, 340, 343. They also said that K.S. kept calling R.D. names, such as “pussy lips”. ¶¶ 341, 343. Students said that, after the fall, R.D. flicked water at K.S., and then K.S. laughed and ran down the hall to her room. ¶¶ 227, 342-343. The students recalled that the RA did ask what happened. ¶ 228. K.S. assured him that everything was friendly in nature. ¶ 228. The students said that the RA stopped K.S. “with some effort,” but she stayed at R.D.’s door trying to call him back into the hallway. ¶ 237. One student told the officers that K.S. was afraid that her coach would see her rug burn and kick her off the team for drinking. ¶¶ 355-356, 360. Student E refuted everything K.S. said about her, saying that R.D. never assaulted her or took advantage of her. ¶¶ 242, 361, 363. Monday evening, when R.D. asked for a copy of his statement, Officer Ulmer told him that he could not have a copy because K.S. had not pressed charges even thought she had requested the filing of criminal charges. ¶¶ 135-137. K.S. had also just given the officers a written statement, accusing R.D. of saying she “wanted to” and was “a huge bitch for resisting.” ¶¶ 140-141. She said that she told him to “stop” and “leave me alone” a thousand times. ¶ 142. 6 Officers Ulmer and James Middleton drafted criminal charges against R.D. for assault, harassment and disorderly conduct. ¶¶ 144-145, 315-316. Officer Holtzapple was not part of the drafting, but swore out and signed the Affidavit of Probable Cause. ¶¶ 145, 312. Jason Friedberg, Chief of Public Safety, reviewed the charges with Bucknell’s General Counsel Wayne Bromfield. ¶ 14, 146. At around 5:45 p.m., Deans Linda Locher and Lewis Marrara informed R.D. that he was being temporarily suspended based on a review of the evidence and gave him a written suspension order. ¶ 148-149. R.D.’s mother, Shelley, called Dean Locher, but Locher refused to talk about the incident. ¶¶ 154-155. Locher said that R.D. was better off at home as he dealt what happened in Smith Hal, that “R.D. must have a lot bottled up inside,” and that he is “holding a lot in.” ¶¶ 156-157. When Shelley expressed concern about R.D. missing up to a month of school, Dean Locher said that there was nothing she could do. ¶ 158. Locher did not indicate the seriousness of K.S.’s allegations or that officers were filing criminal charges. ¶ 160. R.D. stayed at a hotel Monday night. ¶ 161. On Tuesday, September 7, R.D.’s parents John and Shelley and R.D.’s attorney Steve Becker met with Public Safety Captain Douglas Lauver and Deans Locher, Marrara and Badal. ¶ 163. Locher told them not to talk to any witnesses even though 7 K.S.’s father had already done so. ¶¶ 126, 165-166. Captain Lauver said that Chief Friedberg had the witness statements, but that the statements could not be released because they were still being prepared. ¶¶ 168-170. Dean Locher assured them that the statements would be produced in a couple of days. ¶ 171. At no time did Dean Badal mention that she facilitated the initial investigation, attended K.S.’s interview and participated in the decision to suspend R.D. ¶ 172. That day, Bucknell police filed the criminal charges. ¶ 173. R.D. was arrested, arraigned and fingerprinted. ¶¶ 174-175, 439. Thursday morning (September 9), Dean Marrara told R.D. that his suspension was rescinded. ¶ 176. Dean Daniel Remley returned R.D.’s student ID and provided a key for a dorm room. ¶¶ 184, 187. Remley also assured R.D. and his mother Shelley that everything was fine. ¶ 187. Meanwhile, K.S.’s father and her attorney, Anthony J. Voci, Jr., met with Bucknell’s President John Bravman and General Counsel Bromfield. ¶ 188. At about 7:14 p.m., K.S. went with Voci to Public Safety to give a statement to DetectiveSergeant Jeffrey Ettinger. ¶¶ 20, 196-197.5 She exaggerated her story even more in Earlier that day, Ettinger left R.D. a voicemail, asking him to call back and that there was no need for an attorney. ¶ 179. Ettinger knew R.D. had an attorney but was calling him about the criminal investigation anyway. ¶¶ 181-182. 5 8 this interview and claimed that over the past year, R.D. repeatedly called her derogatory names, hit her in the vaginal area and was generally inappropriate. ¶ 199. She said that most students could verify her story. ¶ 200. She stated that on September 5, he started to “jokingly horse play”, but she immediately told him to stop. ¶ 201. She said that, in the presence of other people, started “punching me inappropriately.” ¶ 202. She told the detective, “it was just like him pummeling me, and you know, punching me as hard as he could in my vagina, and him getting aroused by it.” ¶ 206. In addition, K.S. stated that R.D. had previously sexually assaulted her roommate, Student E, and that Student E “despises” him. ¶ 207-208. K.S. told Detective Ettinger that she started fighting back and screamed, “Stop!,” “Get off me!,” “No!,” and “You did this to [Student E], you’re not going to do it to me!” ¶ 209. K.S. said she got away, but he chased her into the hall. ¶ 210. She said he became angry, grabbed her arms, and tackled her. ¶ 211. She claimed that the attack lasted 5 to 7 minutes. ¶ 213. K.S. said several people witnessed the incident and would support her story, specifically naming four. ¶ 220. However, these witnesses had already provided statements to Bucknell police that actually refuted K.S. story and supported R.D. ¶¶ 221-222. 9 When Detective Ettinger asked if she was concerned, K.S. said R.D. made her feel unsafe and scared. ¶¶ 214, 219. Ettinger asked what she wanted Bucknell to do to R.D., and she said Bucknell should expel him. ¶¶ 215-216. Ettinger then asked “what else,” and she said she wanted R.D. to “have a record.” ¶¶ 217-218. Around 9:00 p.m., Officer Holtzapple and an unknown officer came to R.D.’s room and said that he was trespassing and had to leave immediately. ¶ 244-245, 247. He told them that Dean Remley gave him permission to be on campus and showed them his new room key and student ID as proof that his suspension was lifted, but they ignored him. ¶¶ 251-252. R.D. called his mother Shelley to tell her, and she became extremely emotional. ¶¶ 248-249. She told him to call his attorney, but did not have time to before the officers made him sign a document and leave. ¶¶ 246, 250.6 They led him out of his room and put him in the back of a Public Safety vehicle. ¶ 253. Because R.D. did not have a place to stay, they left him alone at a local park and drove off. ¶ 255. He tried calling his mother, but Shelley was too distraught to even drive a car and come and find him. ¶ 256. Eventually, he reached a friend who took him to his mother. ¶ 257. 6 Despite several requests, a copy was never provided. ¶ 246. 10 Because R.D. did not have any place to stay, the officers dropped him off at a local park and left him there alone. ¶ 255. He tried calling his mother, who was staying about 30 minutes away with family friends, but Shelley was too emotionally distraught to even drive a car and come and find him. ¶ 256. Eventually, he reached a friend who took him to his mother. ¶ 257. On Friday (September 10), Office Holtzapple filed a new criminal complaint, adding charges for false imprisonment, indecent assault. ¶ 258. Bucknell police arrested R.D. and had him arraigned again. ¶¶ 259-260, 439. On September 14, K.S. filed student misconduct charges against R.D. for, inter alia, sexual misconduct, assault, harassment and disorderly conduct. ¶ 265. R.D.’s father John and Attorney Becker pointed out to President Bravman and General Counsel Bromfield that the witness statements refuted K.S. and that her statements were extremely inconsistent. ¶¶ 271-272. R.D. filed student conduct charges against K.S. on September 15 for, inter alia, sexual misconduct, assault, harassment and a false accusation. ¶ 266. Dean Conrad notified R.D. and K.S. of the charges and Bucknell’s hearing procedures. ¶¶ 267-268. Conrad said they would receive all relevant documents before the hearing. ¶ 269. 11 In a conference call with Attorneys Becker and Voci, General Counsel Bromfield asked Voci if he had any objection to R.D. returning to campus. ¶¶ 274275. Voci insisted that Bucknell not allow him to return even with an armed escort. ¶¶ 276-278. Voci repeatedly referred to R.D. as a dangerous sex offender. ¶ 279. As a result of the call, Bucknell did not permit R.D. back on campus. ¶ 283. On September 23, Dean Conrad sent a letter with witness statements and other materials to Attorney Becker. ¶ 287. The letter reiterated hearing procedures, requiring R.D. and K.S. to provide a witness and exhibit list. ¶ 288. Attorney Becker responded, requesting the officers’ notes and statements from interviews; reports and notes related to R.D.’s removal; notes from any contact with K.S., her parents, and Attorney Voci.; the medical report; notes and reports from K.S.’s statements to Dean Badal; and any exculpatory evidence. ¶ 289. On October 2, K.S. filed a motion in this Court to enjoin Bucknell’s hearing until after the criminal preliminary hearing, which this Court denied October 5. ¶¶ 300-301. The sexual misconduct hearing took place on October 5-7. ¶ 302. Dean Conrad served as the Student Conduct Administrator (“SCA”) for R.D.’s hearing. The SCA’s responsibilities include, inter alia, keeping records of proceedings and advising the Hearing Board on procedures. ¶ 303. 12 K.S. refused to answer any questions from the Board or R.D. ¶ 305.7 She did not submit a witness list or any other materials before the hearing as required. ¶ 306. Over R.D.’s objection, K.S. was permitted to submit photographs. ¶¶ 307-308. R.D. had requested to see the photographs prior to the hearing but the pictures were never produced. ¶ 308. R.D. also objected to the Board reviewing K.S.’s prior statement because he could not cross-examine her. ¶ 309. Officer Holtzapple revealed that an audio recording of K.S.’s interview was not given to R.D. despite his request. ¶ 313. When asked whether she ever thought K.S. was lying, Holtzapple hesitated and then simply said that her main responsibility was to protect K.S. ¶ 314. R.D., the other student witnesses and the RA denied K.S.’s allegations and told the Board what actually happened. ¶¶ 319, 321, 327, 343, 351, 360, 363, 370, 373, 376-382. R.D. made multiple motions to dismiss the charges because K.S. refused to answer any questions and failed to present evidence, but his motions were denied. ¶¶ 394, 396-397. The Board found both R.D. and K.S. responsible for Disorderly Conduct but not for the other charges. ¶¶ 398-399, 403-404. The Board never stated a factual basis for its finding. ¶ 401. After the hearing, Officer Ulmer said, “I always knew this was When asked by the Board, K.S. said that she did not have her vagina checked at the hospital, but then requested to withdraw her answer. ¶¶ 375-376. 7 13 just a disorderly conduct matter.” ¶ 408. As a result, R.D. was forced to change his on-campus residence. ¶ 406. Bucknell also issued a formal letter of censure detailing its decision that R.D. committed disorderly conduct. ¶ 407. On October 14, R.D. notified Dean Conrad that he wanted to appeal and requesting a copy of the hearing audio for his appeal. ¶ 409. At the appellate hearing on October 20, Dean Conrad, acting as SCA, failed to produce the hearing audio tape. ¶ 411. Bucknell also refused to record the appellate hearing, in violation of the Student Handbook, the Faculty Handbook and the 1967 Joint Statement on Rights and Freedom of Students—endorsed by the Faculty and the Board of Trustees. ¶ 412. Conrad falsely told the Appeals Board that, during the initial hearing, R.D. made only one motion to dismiss his charges. ¶ 413. Conrad repeatedly said that the Board hearing was a long, drawn-out process, thus misrepresenting that sufficient evidence was presented. ¶ 414. Conrad did not tell the Appeals Board that K.S. failed to present any witnesses and refused to answer any questions. ¶ 415. The Appeals Board rejected R.D.’s appeal. ¶ 416. On October 27, R.D. notified Dean Locher that he wanted a final appeal due to the procedural errors, including the failure to provide him with exculpatory evidence and finding him responsible when K.S. did not present evidence or testify. 14 ¶¶ 417-418. He also noted that during his appellate hearing, Dean Conrad failed to produce the original hearing’s audio tape and misrepresented what took place at that hearing. ¶ 419. On November 15, Locher recused herself due to “[her] office’s role in the prior history of this matter,” ¶ 421, and referred the appeal to Provost Mick Smyer. ¶ 422. On December 1, R.D. emailed Smyer to request the original hearing’s audio tape, and that the final hearing be recorded. ¶ 423. Smyer denied the requests. ¶¶ 424, 426. At the final hearing on December 6, R.D.’s advisor argued that the evidence was insufficient because K.S. did not testify. ¶ 429. On December 14, the appeal was denied. ¶ 430. Ultimately, the prosecutors dismissed R.D.’s charges. ¶ 446. As a result of his criminal prosecution and finding of responsibility in the sexual misconduct hearing, R.D. was seriously harmed. ¶¶ 527, 535, 544. He was suspended from Bucknell, and incurred attorneys fees and other costs associated with his defense. ¶¶ 442, 449, 469, 476, 522, 551, 560, 573. R.D. also suffered the loss of his educational payments made for the time frame that he could not attend class or live on campus. ¶ 540. In addition, R.D. suffered physical and psychological harm, pain and suffering. ¶¶ 441, 448, 470, 477, 515, 523, 561, 574. 15 II. ARGUMENT:8 A. Standard of Review: In ruling on a motion to dismiss, “courts accept all factual allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine whether, under any reasonable reading of the complaint, the plaintiff may be entitled to relief.” Phillips v. County of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008) (citation omitted). While claims in the complaint must be “plausible”, “a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Id. (citing Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65, 1969 n. 8 (2007)). Shortly after the Supreme Court reaffirmed its Twombly holding in Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Third Circuit clarified the federal pleading standard. In Fowler v. UPMC Shadyside, 578 F.3d 203 (3d Cir. 2009), a district court found that a plaintiff failed to sufficiently plead disability after determining that her restriction to sedentary work could not legally constitute a disability. Id. at 212-13. However, the Third Circuit reversed because the “the District Court should have focused on... whether Fowler pleaded she is an individual with a disability. The Plaintiffs do not oppose the dismissal of Remley and Rishel who are listed in the caption but not in any counts. 8 16 District Court... instead focused on what Fowler can ‘prove’... Even post-Twombly, it has been noted that a plaintiff need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Id. at 21314 (emphasis in original). B. Bucknell’s police officers violated R.D.’s Fourth Amendment rights when they arrested him without probable cause.9 1. The arrest and charging of R.D. was clearly state action. While Bucknell is a private institution, its police officers have full police power. Their actions in arresting and charging R.D. with criminal charges clearly constituted state action, and are subject to constitutional restriction. Bucknell cites this Court’s Stefanowicz v. Bucknell decision which referenced Bucknell as a “private entity”. 10-CV-2040, 2010 WL 3938243, at *3 (M.D. Pa. Oct. 5, 2010). A private party is a “state actor” under Section 1983 if he or she “exercise[s] Bucknell appears to argue that R.D. may have waived his claims due to his opposition to K.S.’s Motion for a Preliminary Injunction. They cite his expressed desire “to have a timely hearing... to clear his name...” Bucknell Br. p. 9. R.D.’s desire to quickly prove his innocence was no concession that his charges were proper. R.D., at the time, presumed that Bucknell would provide him due process in a hearing. In any event, there is no “change of heart” waiver doctrine, and Bucknell does not cite any legal authority to develop such a claim. If Bucknell develops this claim in its Reply, Plaintiffs would seek leave to file a Sur-Reply. 9 17 powers that are traditionally the exclusive prerogative of the state”. 2010 WL 3938243, at *2-*3 (quoting Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009)). “The inquiry is fact-specific.” Id. Applying that test to a misconduct hearing, this Court found in Stefanowicz that the student misconduct hearing was “strictly an internal investigation.” Id. at *3. The Court specifically noted that K.S. was not arrested. Id. at n. 2. R.D., on the other hand, was arrested by campus police. His arrest was clearly state action. Unlike a student disciplinary hearing, “plenary arrest power... is a power traditionally reserved to the state alone.” Romanski v. Detroit Entm't, L.L.C., 428 F.3d 629, 638 (6th Cir. 2005). See also Rodriguez v. Smithfield Packing Co., 338 F.3d 348, 355 (4th Cir. 2003) (an arrest is “the function most commonly associated with the police”) (quoting Foley v. Connelie, 435 U.S. 291, 297 (1978)). In other words, a private party is a state actor “when the state gives a private party exactly the same powers as the police...” Stokes v. Nw. Mem’l Hosp., 1989 WL 84584, at *4 (N.D. Ill. July 24, 1989). See DeCarlo v. Joseph Horne & Co., 251 F. Supp. 935, 937 (W.D. Pa. 1966) (arrest by store detective state action). Bucknell is a state-aided university, ¶ 435, that requested and received authorization for its police officers to act with all the power of a municipal police department. ¶ 451. Bucknell public safety officers are appointed and sworn 18 police officers under 22 P.S. § 501. ¶ 434.10 Section 501(a) allows non-profit corporations to apply for and receive appointment of their employees “to act as policemen for the corporation.” Under § 501(c), these policemen “possess and exercise all the powers of a police officer in this Commonwealth, in and upon, and in the immediate and adjacent vicinity of, the property of the corporation...” In addition, 71 P.S. § 646 provides full police power authority to, inter alia, campus police at all state-aided universities. 71 P.S. § 646.1(a) also specifically provides campus police full police power. Under these statutes, Pennsylvania courts have recognized that campus police have full police power. See Flagg v. State Sys. of Higher Educ., 904 A.2d 1004, 1008 n. 3 (Pa. Commw. Ct. 2006). It is clear that Bucknell’s police officers acted with Pennsylvania’s authority when they arrested and charged R.D. Indeed, in the case of Henderson v. Fisher, 631 F.2d 1115, 1118 (3d Cir. 1980), the Third Circuit addressed state action under § 646 regarding the University of Pittsburgh police and held that the statute “delegated to the campus police of the University of Pittsburgh the very powers which the Bucknell argues that these allegations are “conclusory”; they are not. These allegations are factual: (1) it receives state funds, (2) it applied for and received permission to have police power, and (3) its police officers are appointed and sworn. These allegations are further corroborated by the fact that Bucknell officers in this case used this very police power to arrest and charge R.D. 10 19 municipal police force of Pittsburgh possesses.” Id. at 1118. It continued, “the delegation of police powers, a government function, to the campus police buttresses the conclusion that the campus police act under color of state authority.” Id. at 1119. Henderson is controlling in this case, and Bucknell’s police act under the color of law just as the University of Pittsburgh police. Bucknell acted as the government to arrest R.D.–the clearest sign of police power, and it cannot now hide from constitutional limitations on government abuses. See also Romanski, 428 F.3d at 638 (“One consequence of Brown’s possession of this authority, the authority to make arrests at one’s discretion and for any offenses, is clear: at all times relevant to this case, Brown was a state actor as a matter of law.”). “It would be hard to imagine... a more prototypically representative government function than [Bucknell’s] use of [its] official capacity to effectuate the arrest of [R.D.]” Rodriguez, 338 F.3d at 355. Because the Bucknell police are vested with almost identical powers to municipal police, they exercise functions that are traditionally the exclusive prerogative of the state. Courts have on numerous occasions found similar campus police to be state actors. See e.g., Boyle v. Torres, 756 F. Supp. 2d 983, 995 (N.D. Ill. 2010) (University of Chicago Police); Maniaci v. Georgetown Univ., 510 F. Supp. 2d 20 50, 69-70 (D.D.C. 2007) (Georgetown University Police); Scott v. Nw. Univ. Sch. of Law, 98 C 6614, 1999 WL 134059, at *5-*6 (N.D. Ill. Mar. 8, 1999) (Northwestern University police). Bucknell relies on Kach, where the Third Circuit held that “a privately-employed school security guard” was not performing an exclusive government function. 589 F.3d at 647-48.11 The Court rejected Kach’s argument that the security guard was “imbued with all the powers of a state police officer.” Id. at 647 n. 21. The guard could only patrol the school, check for hall passes, escort students to the principal and prevent disturbances. Id. The Third Circuit also limited its holding to the facts before it: “We do not foreclose the possibility that, under other circumstances, a private security guard employed in a public school could qualify as a state actor.” Id. at 649 n. 22. Bucknell’s reliance on Kach is misplaced. Unlike in that case, Bucknell police officers have full police power, and unlike in that case, the Leshko v. Servis, cited by Bucknell, is easily distinguishable. 423 F.3d 337 (3d Cir. 2005). Leshko, 423 F.3d at 342, held that foster parents “more closely resemble” a private nursing home than public officials, distinguishing Monroe v. Pape, 365 U.S. 167, 184 (1961) (police officers). Leshko, 423 F.3d at 342. 11 21 challenged action (an arrest) is an exclusive state function. If it were not, it would be hard to imagine what would be.12 Bucknell consistently acted with the authority of the state—from the custodial interrogation where R.D. was Mirandized, ¶¶ 120-123, to forcibly removing him from campus and making him sign a document (that he still has not received a copy of), ¶¶ 244-253, to arresting him twice, ¶ 439. Bucknell’s officers acted as the state and are subject to the constitutional limitations on state power. 2. Plaintiffs have alleged each officers’ involvement. The Complaint clearly alleges the personal involvement of each officer. Accepting the Complaint’s allegations as true, Officers Holtzapple, Fisher and Ulmer and Detective Ettinger all interviewed K.S. ¶¶ 87, 196. In his interview, Ettinger asked K.S. what she wanted and she said for “have a record.” ¶¶ 217-218. Holtzapple and Fisher went with her to the hospital for the medical exam. ¶ 111. Officers Ulmer and Middleton drafted the criminal charges and Affidavit of Probable Cause, which Holtzapple swore out and signed as true. ¶ 145. Ulmer and Fisher interviewed R.D. Bucknell notes that its police are subject to jurisdictional limitations. Bucknell Br. p. 14 n. 11. The officers have this in common with every police officer, and it is telling that they can point to no other limitation on their authority. 12 22 ¶ 122. Holtzapple and Doe forcibly removed R.D. from campus in a police car. ¶¶ 244-55. Holtzapple filed a second complaint against R.D. with additional charges. ¶ 258. Detective Ettinger and Officers Holtzapple, Ulmer, Middleton and Fisher arrested R.D. twice without probable cause. ¶ 439.13 The public safety officers knew that the information upon which they based the arrest was false. ¶ 436. Ulmer later admitted, “I always knew this was just a disorderly conduct matter.” ¶ 408. When asked at the sexual misconduct hearing whether she ever thought K.S. was lying, Holtzapple hesitated and then simply said that her main responsibility was to protect K.S. ¶ 314. In order to obtain the arrest warrants, the officers intentionally omitted exculpatory information that would have negated any perceived probable cause. ¶¶ 437, 440.14 Disregarding these allegations, Bucknell claims that the Complaint fails to allege that R.D. was arrested by a Bucknell police officer, Bucknell Br. p. 5 n. 6. This Court must accept the facts in the Complaint. Bucknell claims that this is a “bald assertion,” apparently contending that the lengthy Complaint needs to allege more details of each officers’ involvement. See Bucknell Br. p. 19 n. 14. Plaintiffs have extensively pled facts (despite a notice pleading standard), and this Court should not throw out police officers that were obviously involved in charging R.D. 13 Bucknell claims that Fisher only interviewed R.D., and Ettinger only left him a voicemail. However, Plaintiffs have pled the officers’ investigative involvement and in overlooking exculpatory evidence to obtain the arrest warrant. Bucknell concedes, as it must, that Ulmer and Middleton typed up R.D.’s charges, but claims that this function was akin to “any administrative assistant.” Bucknell Br. p. 19. While Plaintiffs concede that administrative assistants can type, there is 14 23 These allegations are sufficient at the pleading stage to show each officers’ involvement in falsely obtaining R.D.’s arrest warrant and in his malicious prosecution. Accordingly, dismissal is improper. Schmoltz v. County of Berks, CIV.A. 99-CV-1069, 2000 WL 62600, at *5 (E.D. Pa. Jan. 14, 2000) (denying dismissal of investigative officers where they aided in the arrest by, inter alia, ignoring exculpatory evidence). 3. The officers arrested R.D. without probable cause. Accepting the allegations in the Complaint as true, the Bucknell police knew of the overwhelming exculpatory evidence refuting K.S.’s allegations, but ignored it. Despite the testimony of several witnesses showing her story to be false, they arrested R.D. anyway, added some charges and then arrested him again. An arrest violates the Fourth Amendment unless the officer has probable cause, which “exists if there is a ‘fair probability’ that the person committed the crime at issue.” Wilson v. Russo, 212 F.3d 781, 789 (3d Cir. 2000). Here, there was no “fair probability” of R.D.’s guilt because every witness refuted K.S.’s allegations. significance to what was drafted. Plaintiffs simply need to demonstrate the officers’ participation in his arrest and prosecution, and this clearly suffices. 24 Bucknell argues that exculpatory evidence is irrelevant, but it is wrong. “An officer contemplating an arrest is not free to disregard plainly exculpatory evidence, even if substantial inculpatory evidence (standing by itself) suggests that probable cause exists.” Id. at 790 (citation omitted). The Third Circuit has explained, “Independent exculpatory evidence or substantial evidence of the witness’s own unreliability that is known by the arresting officers could outweigh the identification such that probable cause would not exist.” Id. Thus, an officer can only rely on “reasonably trustworthy” witnesses. Schneyder v. Smith, 653 F.3d 313, 323 (3d Cir. 2011). K.S.’s story was so contradicted by the other witnesses that no reasonable officer would have believed her. An officer also violates the Fourth Amendment in drafting an affidavit of probable cause if he (1) “knowingly and deliberately, or with a reckless disregard for the truth, made false statements or omissions that create a falsehood in applying for a warrant; and (2) ...such statements or omissions are material, or necessary, to the finding of probable cause.” Wilson, 212 F.3d at 786-87. “An assertion is made with reckless disregard when viewing all the evidence, the affiant must have entertained serious doubts as to the truth of his statements or had obvious reasons to doubt the accuracy of the information he reported.” Id. at 788. 25 Here, the contradictory evidence was substantial: the officers interviewed numerous witnesses that refuted K.S., and her allegations were continually changing and inconsistent. The statements from at least 8 witnesses, including witnesses K.S. specifically identified to the officers as supporting witnesses, all refuted K.S. story and supported R.D.’s statement that they were just “play-fighting.” ¶¶ 125-128, 221222.. In fact, the witnesses generally named K.S. as the aggressor. ¶ 128. For example, K.S. named four individuals that she claimed saw R.D. pinch and punch her in inappropriate places. ¶¶ 88-93, 202, 220. These students (and every other student) informed the officers that they only observed friendly play-wrestling and that it was not sexual. ¶¶ 223, 230, 317, 319-21, 324, 327-328, 331, 343-344, 351, 358-360. In fact, no student witnessed R.D. make any sexual advances, hit her in the head or vagina, call her any derogatory names or engage in any other questionable behavior. ¶¶ 325-327, 329, 343, 384, 392-393. Contrary to K.S.’s allegation that she was yelling at R.D. in his room, ¶¶ 142, 209, students standing outside R.D.’s room did not hear anything of the sort. ¶¶ 333, 343, 345-346, 351, 386, 388. Students said that, when R.D. and K.S. returned to the hall, they were still joking and laughing. ¶¶ 224, 231, 347, 351. The students 26 explained that there was no reason to believe anything improper had taken place, and K.S. had no marks on her when she left R.D.’s room. ¶¶ 335, 343, 348, 351, 387. She claimed that R.D. tackled her while she was trying to leave, ¶¶ 99-101, 211, but the witnesses recalled that R.D. tried to stop play-fighting, and K.S. started repeatedly slapping him in the face. ¶¶ 225, 236, 241, 337-338, 343, 349, 351. Students told the officers that the fall that led to K.S.’s rug burn was simply a “loss of balance” resulting from K.S. flailing around and still trying to hit him as R.D. tried to stop her. ¶¶ 226, 340, 343. They also said K.S. kept calling R.D.“pussy lips”. ¶¶ 341, 343. Later on, after the fall, R.D. flicked water at K.S., and then K.S. laughed and ran down the hall to her room. ¶¶ 227, 342-343. Clearly not the actions of a victim of a sexual assault. She denied that the RA asked her what happened, but the other students remembered that he did. ¶¶ 103-105, 228. The RA’s report and students indicated that K.S. slapped R.D. in the face, and that she had to be restrained. ¶¶ 81-82, 237, 365, 368, 370, 373. K.S. made him “pinky swear” not to file a report. ¶¶ 370-371, 373. Her statements were inconsistent as well. She told the RA that they were just playing. ¶ 228, 369, 370, 373. One student told the officers that K.S. said she was afraid that her coach would see her rug burn and kick her off the team for drinking. 27 ¶¶ 355-356, 360. In the first police interview, she said the attack lasted 20 minutes, but she said 5-7 minutes in the second interview. ¶¶ 95, 213. Additionally, she also told the officers that R.D. sexually assaulted Student E that summer, ¶¶ 97-98, 207, which Student E denied to the officers. ¶¶ 242, 361, 363. Under the circumstances, K.S. completely lacked credibility to support probable cause. As the Western District explained in a similar case, “While the accusation of SB, and in particular the content of the forensic interview appear compelling, there is a substantial amount of contradictory evidence that was available to Hanley that was not contained in the affidavit of probable cause.” O'Hara v. Hanley, CIV.A. 08-1393, 2011 WL 915776, at *7 (W.D. Pa. Mar. 15, 2011) (denying summary judgment to officer). As in Wilson, the cases cited by Bucknell are easily distinguishable as they “fall into two basic camps: (1) those in which there was no exculpatory evidence or evidence of witness unreliability...; and (2) those in which the court concluded that a positive identification was not fatally undermined by unreliability or exculpatory evidence...” Wilson, 212 F.3d at 790. Cf. Petaccio v. Davis, 76 F. App.x 442, 445 (3d Cir. 2003) (“There were no allegations that the identifications were falsified, dishonest, biased or prejudicial...”); Piazza v. CT Corp., No. 3:09-CV-1087, 2011 WL 28 4460621, at *8 (M.D. Pa. Sept. 26, 2011) (“[P]robable cause was based on his first-hand knowledge obtained through objective video evidence and plaintiff's incriminatory statements.”); Hickson v. Marina Associates, 743 F. Supp. 2d 362, 371 (D.N.J. 2010) (no exculpatory evidence); Hines v. Proper, 442 F. Supp. 2d 216, 22122 (M.D. Pa. 2006) (Kane, J.) (“[T]here are no allegations that the arrest warrant was invalid for want of probable cause or that Defendants lied to obtain the warrant”).15 Viewing the facts in the light most favorable to Plaintiffs, unlike in those cases, the exculpatory witness statements rendered K.S. not credible. Accordingly, the officers violated R.D.’s rights when they arrested him without probable cause and omitted the witnesses’ statements from their affidavit of probable cause to arrest. 4. No reasonable officer would have believed K.S. Accepting the allegations in the Complaint as true, any reasonably competent officer would have known that the overwhelming evidence refused K.S.’s claims. Bucknell claims that this Court can consider the attached photographs, citing S. Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd., 181 F.3d 410, 426 (3d Cir. 1999). That case held, “we may take judicial notice of another court's opinion-not for the truth of the facts recited therein, but for the existence of the opinion, which is not subject to reasonable dispute over its authenticity.” Unlike S. Cross, (1) the photos are not a judicial opinion, (2) Bucknell is asking the Court to accept the truth of the photos, and (3) the photos are disputed as R.D. denies harming her, and K.S. said some marks came from field hockey, not R.D. ¶¶ 106-07. 15 29 “The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Schneyder, 653 F.3d at 318. Of course, the right to be free from arrest except on probable cause was clearly established at the time of R.D.’s arrests. Wilson, 212 F.3d at 790. As was the officers’ obligation to consider exculpatory evidence. Id. at 789. See Lippay v. Christos, 996 F.2d 1490, 1504 (3d Cir. 1993) (“If a police officer submits an affidavit containing statements he knows to be false . . . , the officer obviously failed to observe a right that was clearly established.”). In the “Duke Lacrosse” case, the Middle District of North Carolina held, “a reasonable police officer would have known that it would violate clearly established constitutional law to deliberately or recklessly present false or misleading evidence to obtain an order and effect a search or seizure without probable cause.” McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 965 (M.D.N.C. 2011). The Court continued, “there can be no question that the Constitution is violated when government officials deliberately fabricate evidence and use that evidence against a citizen...” Id. at 1015. As in McFadyen, (viewing the facts in favor of Plaintiffs) a reasonable officer would 30 have known that K.S. lacked credibility, that probable cause did not exist and not to omit exculpatory evidence from the affidavit of probable cause. C. The officers violated R.D.’s Fourth Amendment rights when they prosecuted him without probable cause. The officers also violated R.D.’s Fourth Amendment rights when they prosecuted him without probable cause. As explained above, any reasonable officer would have known that—viewing the facts in the light most favorable to Plaintiffs—K.S. lacked credibility as every witness refuted her account. The elements of a malicious prosecution claim are as follows: “(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiff's favor; (3) the proceeding was initiated without probable cause; (4) the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered a deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” DiBella v. Borough of Beachwood, 407 F.3d 599, 601 (3d Cir. 2005). Here, the officers (1) charged R.D., (2) the prosecutors dropped the charges, (3) the officers lacked probable cause, (4) the officers maliciously acted knowing the overwhelming evidence supported R.D.’s innocence, and (5) R.D. was subjected to two arrests, booked and arraigned. 31 Accepting the allegations in the Complaint as true, Officers Holtzapple, Ulmer, Middleton and Fisher and Detective Ettinger submitted an Affidavit of Probable Cause containing false information to the District Justice in an effort to initiate criminal proceedings against R.D. ¶ 444. The officers also provided knowingly false information to the prosecutors to advance the criminal case. ¶ 445. The officers failed to bring exculpatory and contradictory evidence to the prosecutors’ attention as such evidence surfaced. ¶ 445. The officers willfully and maliciously assisted in the prosecution of R.D. knowing that they did not have probable cause and that the overwhelming evidence pointed toward his innocence. ¶ 447. This conduct is sufficient to demonstrate malice. “Malice” has been defined as “ill will in the sense of spite, lack of belief by the actor himself in the propriety of the prosecution, or its use for an extraneous improper purpose.” Lippay, 996 F.2d at 1502 (3d Cir. 1993) (citation omitted). “Malice may be inferred from the absence of probable cause.” Id. Malice can also be shown by a reckless disregard for the plaintiff’s rights. Id. at 1503. As explained above, the officers lacked probable cause. Officer Ulmer also lied about whether K.S. had pressed charges in order to withhold evidence. ¶¶ 135-137. They submitted an arrest application in reckless disregard to R.D., even adding charges for a second arrest after every witness refuted K.S. 32 Bucknell argues that R.D. was not seized. “When the state places constitutionally significant restrictions on a person's freedom of movement for the purpose of obtaining his presence at a judicial proceeding, that person has been seized within the meaning of the Fourth Amendment.” Schneyder, 653 F.3d at 321-22. Here, R.D.’s freedom of movement was restrained when he was arrested and arraigned. Bucknell cites Bryant v. Vernoski, No. 11-263, 2011 WL 4400820, at *4-*5 (M.D. Pa. Sept. 1, 2011), but Bryant is easily distinguishable as in that case there was no arrest. Id. Bryant also relied on DiBella, 407 F.3d at 603, another case where there was no arrest. R.D. was arrested twice. This case is more like Johnson v. Sch. Dist. of Philadelphia, CIV. A. 06-4826, 2008 WL 3927381, at *8 (E.D. Pa. Aug. 21, 2008), where the Eastern District distinguished DiBella because the plaintiff was arrested. In addition, the Third Circuit recently clarified the law as to what constitutes a “seizure”. In Schneyder, the Third Circuit reaffirmed its adoption of Justice Ginsberg’ s “continuing seizure” interpretation of the Fourth Amendment that all pretrial restrictions are ultimately intended to secured a defendant’s appearance at trial, citing her concurrence from Albright v. Oliver, 510 U.S. 266, 277-80 (1994). 653 F.3d at 319-21. Under Schneyder, R.D. was “seized” under the Fourth Amendment when he was arrested twice on false charges. Accordingly, dismissal is inappropriate. 33 D. Bucknell and the officers’ supervisors are responsible for R.D.’s arrest and prosecution. Bucknell and the officers’ supervisors are responsible for R.D.’s arrest and prosecution. This case is not one in which a rogue officer filed charges under the radar; here, the administration was the moving force behind the charges from day one. “[W]hen a subordinate’s decision is subject to review by the municipality's authorized policymakers, they have retained the authority to measure the official's conduct for conformance with their policies. If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final.” ”City of St. Louis v. Praprotnik, 485 U.S. 112, 127 (1988) (emphasis added). Liability attaches either for “a particular decision by a subordinate . . . expressly approved by the supervising policymaker,” or for “a series of decisions by a subordinate official . . . of which the supervisor must have been aware...” Id. at 130 (plurality). See id. at 144 (Brennan, J., concurring). See also Keenan v. City of Philadelphia, 983 F.2d 459, 468-69 (3d Cir. 1992) (police commissioner’s acquiescence establishes municipal liability). The arrest and prosecution of R.D. were ratified by Chief Friedberg, President Bravman and Deans Locher, Badal and Marrara, who are final policymakers for day- 34 to-day law enforcement activities. ¶ 453.16 These policymakers, personally knew of, encouraged and assisted the officers’ actions. ¶ 454. Accepting these allegations as true, these policymakers continued to encourage and assist the officers even though they were personally aware that the medical exam and witness statements showed that K.S. was not credible. ¶ 455. The Complaint also alleges that Dean Badal directed K.S. to report to Bucknell police and accompanied her for the police interview. ¶¶ 85, 87. Chief Friedberg had the witness statements in his possession and reviewed the charges before they were filed. ¶¶ 146, 168-170. Deans Locher and Marrara reviewed the evidence before he was charged. ¶ 148-149. R.D.’s father and attorney pointed out to President Bravman that the witness statements refuted K.S. ¶¶ 271-272. These allegations are sufficient at the pleading stage to establish Bucknell’s responsibility for the arrest and prosecution of R.D. As to each supervisor’s personal liability, it is more than appropriate to hold supervisors responsible that “knew of... conduct and approved it.” Blanche Road Corp. v. Bensalem Tp., 57 F.3d 253, 263 (3d Cir. 1995). See Pembaur v. City of Bucknell claims that these allegations are conclusory, Bucknell Br. pp. 2526, but these allegations are factual in nature and corroborated by the allegations of each supervisor’s personal involvement. 16 35 Cincinnati, 475 U.S. 469, 478 (1986) (“Monell is a case about responsibility.”). As this Court has explained, “personal involvement of a supervisor can be demonstrated through allegations of personal direction or of actual knowledge or acquiescence in the alleged wrongs.” Pansy v. Preate, 870 F. Supp. 612, 629 (M.D. Pa. 1994) aff'd, 61 F.3d 896 (3d Cir. 1995). The Complaint has sufficiently alleged each supervisor’s involvement. This case is like the Duke Lacrosse case where the Court found similar allegations sufficient at the pleading stage. McFadyen, 786 F. Supp. 2d at 964. Captain Lauver is also liable as a bystander. “[A]n officer may be liable under § 1983, on a theory of bystander liability, if he: (1) knows that a fellow officer is violating an individual’s constitutional rights; (2) has a reasonable opportunity to prevent the harm; and (3) chooses not to act.” Id. at 952 (quoting Randall v. Prince George's County, 302 F.3d 188, 202-04 (4th Cir.2002)). As a supervisor, Lauver had authority to stop the arrest and prosecutions of R.D. ¶ 456. He knew that the arrest and prosecution lacked probable cause but failed to intervene to prevent the violation of R.D.’s Fourth Amendment rights. ¶ 456. Viewing these allegations as true (as this Court must), he should not be dismissed from this action. In addition, “the inadequacy of police training may serve as the basis for §1983 liability only where the failure to train amounts to deliberate indifference to the rights 36 of persons with whom the police come into contact.” See City of Canton v. Harris, 489 U.S. 378, 388 (1989). The standard is whether “the need for more or different training is so obvious, and the inadequacy so likely to result in the violation of constitutional rights, that the policymakers of the city can reasonably be said to have been deliberately indifferent to the need.” Harris, 489 U.S. at 390. Bucknell did not train its officers on how to investigate potential crimes, what constitutes malicious prosecution, and what constitutes probable cause. ¶ 452. Accepting these allegations as true, these essential determinations were so obvious that the inadequate training amounted to deliberate indifference. Accordingly, this Court should not dismiss the claims against Bucknell and the supervisors. E. R.D. has stated a state law claim for false imprisonment. For the above stated reasons, the Bucknell officers caused both of R.D.’s arrests without justification to do so. Bucknell correctly notes that the supervisors are named in this state law count as they are liable under state law as well.17 Bucknell claims it is unclear what role Officer Doe, an unknown officer, had. Plaintiffs allege that he forcibly removed R.D. from campus. ¶¶ 244-255, 459. 17 37 F. The Bucknell officials conspired with each other, K.S. and her attorney, Voci, to arrest and prosecute R.D. without probable cause. The Bucknell officials conspired with each other, K.S. and her attorney, Voci, to falsely charge and prosecute R.D. As a result of this conspiracy, R.D. was the subject of a baseless prosecution. The elements of a civil conspiracy are: “(1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose; (2) an overt act done in pursuance of the common purpose; and (3) actual legal damage.” Slater v. Susquehanna County, 613 F. Supp. 2d 653, 668 (M.D. Pa. 2009). Here, (1) Bucknell officials acted with a common purpose with Voci and K.S. to falsely arrest and prosecute R.D; (2) overt acts were committed: they arrested R.D. (twice) and prosecuted him; and (3) R.D. suffered emotional and financial harm. Accepting the allegations in the Complaint as true, Attorney Voci conspired with Bucknell officials and K.S. to cause R.D.’s false arrest and prosecution and to suppress exculpatory evidence. ¶¶ 465-466, 472-473, 474.18 Specifically, he conspired Bucknell argues that the conspiracy is implausible because K.S. sued it over her student disciplinary hearing. Viewing the facts in the light most favorable to Plaintiffs, Voci and K.S. conspired with Bucknell to prosecute R.D. (something they agreed on) even though they disagreed on how to dispose of K.S.’s charges. 18 38 with President Bravman, Deans Locher, Badal and Marrara, General Counsel Bromfield, Chief Friedberg, Detective Ettinger, and Officers Holtzapple, Doe, Ulmer, Middleton and Fisher. ¶¶ 466, 473. Voci consistently worked with Bucknell officials to initiate the prosecution of R.D., and assented to his client K.S.’s desire that R.D. “have a record,” though there was no credible evidence on which to arrest him. ¶ 467. Furthermore, Bucknell didn’t allow R.D. back on campus before his hearing because Voci objected. ¶¶ 274-279, 283. These acts where done with the common purpose to prosecute R.D. without probable cause and to remove him from campus. ¶ 468, 475. Bucknell argues that its officials cannot conspire with each other because they all work for Bucknell. “However, the Third Circuit has held that individuals who are agents and of the same principal can form a conspiracy...” Best v. County of Northumberland, 4:11-CV-00896, 2011 WL 6003853, at *7 (M.D. Pa. Nov. 30, 2011) (citing Novotny v. Great Am. Fed. Sav. & Loan Assn., 584 F.2d 1235, 1262 (3d Cir.1978), vacated on other grounds, 442 U.S. 366 (1979)). Accordingly, Plaintiffs properly alleged that the Bucknell officials “conspired with each other.” Id.19 Bucknell argues that Plaintiffs failed to plead malice, i.e., an intent to injure, citing Stambaugh’s Air Serv., Inc. v. Susquehanna Area Regional Airport Auth., 1:00-CV-660, 2006 WL 709229, at *5 (M.D. Pa. Mar. 16, 2006) (Kane, J.). Viewing the facts in the light most favorable to Plaintiffs, the Defendants clearly showed an intent to injure R.D. when they arrested and charged him without probable cause in the face of overwhelming evidence of his innocence. 19 39 G. Bucknell officials defamed R.D. when they falsely named him and portrayed him as a sex offender. Bucknell’s officials falsely named and portrayed R.D. as a sex offender, recklessly accusing him of committing a sexual assault on K.S. These comments constitute defamation per se, and they are liable for the damage caused to R.D. This Court summarized the elements Breslin v. Dickinson Twp.: (1) the defamatory character of the communication; (2) its publication by the defendant; (3) its application to the plaintiff; (4) an understanding by the reader or listener of its defamatory meaning; (5) an understanding by the reader or listener of an intent by the defendant that the statement refers to the plaintiff; (6) special harm resulting to the plaintiff from its publication; and (7) abuse of a conditionally privileged position. 1:09-CV-1396, 2010 WL 3293337 (M.D. Pa. Aug. 19, 2010). Bucknell, Officers Ulmer, Middleton, Holtzapple and Fisher, and Deans Locher and Marrara all made defamatory communications to third parties about R.D. ¶¶ 479, 489. The communications referred to R.D. as the perpetrator of a sexual assault on K.S., even though they knew this allegation was false. ¶¶ 480, 482, 494. The communications also listed his home address in Connecticut thereby spreading the 40 message to his home town. ¶ 494. All persons receiving the communications understood their defamatory meaning. ¶ 495.20 Bucknell officials made the following defamatory communications: a. Officers Ulmer, Middleton and Holtzapple made false accusations in the criminal complaint and affidavit of probable cause accusing R.D. of sexually assaulting K.S. ¶¶ 144-145, 312, 315-316, 490(a, d). These charges were public, and reviewed by, inter alia, the magistrate judge and prosecutors. ¶ 490(a, d). b. On the evening of September 6, Deans Locher and Marrara had R.D. temporarily suspended. ¶¶ 148-149, 490(b). Dean Locher issued R.D. a written temporary suspension order. Id. c. Dean Locher then told R.D.’s mother, Shelley, that “R.D. must have a lot bottled up inside,” and that he was “holding a lot in.” ¶¶ 156-157, 490(c). Plaintiffs have alleged intentional and reckless conduct, but need only prove negligence. Franklin Prescriptions, Inc. v. The New York Times Co., 267 F. Supp. 2d 425, 436 (E.D. Pa. 2003) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 347 (1974)); Wilson v. Slatalla, 970 F. Supp. 405, 414 (E.D. Pa. 1997) (citing Rutt v. Bethlehems Globe Publishing Co., 484 A.2d 72 (1984)). 20 41 d. Bucknell representatives were also quoted in many Daily Item articles. ¶ 490(j). For every day of sexual misconduct hearing, Bucknell officials were quoted discussing the hearing. ¶¶ 299, 490(j). Bucknell directed and participated in the publication of the defamatory publication by the Daily Item. ¶ 490(j). e. On October 7, Bucknell found R.D. responsible for Disorderly Conduct and issued a formal letter of censure. ¶ 490(k). These statements were made in spite of overwhelming evidence refuting K.S.’s claims. ¶ 487. The defamatory communications continued to be re-published after these Defendants were made aware of the falsity of the allegations against R.D. ¶ 491. Bucknell argues that the Complaint fails to allege which officials made each communication to the press and what articles contain those statements. However, federal pleading practice does not require these sort of stringent particularity of pleading defamation claims that Pennsylvania practice requires. See e.g., Cuturilo v. Jefferson Reg'l Med. Ctr., CIV. 10-1723, 2011 WL 2941031, at *4 (W.D. Pa. July 20, 2011); Rapid Circuits, Inc. v. Sun National Bank, Civil Action No. 10-6401, 2011 WL 1666919, at *11 (E.D.Pa. May 3, 2011); Roskos v. Sugarloaf Twp., 295 F. Supp. 2d 480, 492 (M.D. Pa. 2003); Krochalis v. Ins. Co. of N. Am., 629 F. Supp. 1360, 42 1368 (E.D. Pa. 1985); Karr v. Lower Merion Twp., 582 F. Supp. 410, 413 (E.D. Pa. 1983). Accordingly, a plaintiff need not plead “the precise defamatory statements so long as the count provides sufficient notice to the defendant.” Mascarini v. Quality Employment Services & Training, 1:10-CV-1546, 2011 WL 332425, at *8 (M.D. Pa. Jan. 31, 2011). “Nor must the individual who made the statement be specifically identified if notice pleading standards are satisfied.” Id. In Joyce v. Alti Am., Inc., Joyce alleged that the defendants made remarks to third-parties, naming one such third-party. CIV. A. 00-5420, 2001 WL 1251489, at *3 (E.D. Pa. Sept. 27, 2001). The complaint only named one of the defendants who made any of the defamatory comments, and the Court held that “the allegations do provide Defendants with sufficient notice to infer that they were made by other Alti employees.” Id. However, the Court granted the motion to dismiss and gave Joyce leave to amend, finding that Joyce did not sufficiently “give Defendants notice of the basic nature” of the defamatory communications. Id. As in Joyce, Plaintiffs have given the Bucknell Defendants more than sufficient notice of who made the communications. Unlike in Joyce, Plaintiffs have clearly delineated the subject matter of the defamation (that R.D. committed a sexual assault). These allegations are sufficient to survive a motion to dismiss as Bucknell is on notice of Plaintiffs’ claim. 43 Similar to this case, this Court has found that a plaintiff sufficiently pled defamation by alleging that the defendant made “false statements about Plaintiffs committing the aforesaid criminal offenses” at the magisterial hearings. Roskos, 295 F. Supp. 2d at 492. See also Reager v. Williams, 3:08CV2035, 2009 WL 3182053, at *5 (M.D. Pa. Sept. 25, 2009) (defamation claim sufficient); Rishell v. RR Donnelley & Sons Co., CIV.A. 06-4782, 2007 WL 1545622, at *3 (E.D. Pa. May 24, 2007) (denying motion to dismiss) (“While Plaintiff fails to list the individuals to whom this statement was made by name, he does identify specific groups of individuals to whom that statement was published including “retired employees of [Defendant]” and “employees of Y & S Candies.”); Borrell v. Weinstein Supply Corp., CIV. A. 94-2857, 1994 WL 530102, at *3 (E.D. Pa. Sept. 27, 1994) (defamation claim sufficient even though it does not state which employees made the remarks). Therefore, this Court should not dismiss the defamation claims. Bucknell also argues that defamation does not apply to non-verbal conduct, such as R.D.’s suspension, but Pennsylvania law allows defamation actions for nonverbal as well as verbal communication. D'Errico v. DeFazio, 763 A.2d 424, 432 (Pa. Super. Ct. 2000); Doe v. Kohn, Nast & Graf, P.C., 862 F. Supp. 1310, 1327 (E.D. Pa. 1994); Krochalis v. Ins. Co. of N. Am., 629 F. Supp. 1360, 1368 (E.D. Pa. 1985) 44 (citing Berg v. Consolidated Freightways, Inc., 421 A.2d 831 (1980); Bennett v. Norban, 151 A.2d 476 (1959)). As the Eastern District explained, “Actions alone may be legally defamatory where it is shown that such actions, by innueno, created a negative impression of the character of the Plaintiff in the eyes of a third person.” Clemente v. Espinosa, 749 F. Supp. 672, 676 n. 4 (E.D. Pa. 1990). In Bennett, for example, the Pennsylvania Supreme Court found that the conduct was sufficiently slanderous when the plaintiff treated like a thief, in that she was questioned about her pockets, asked to remove her coat and her purse was searched. 151 A.2d at 98. In this case, as in Bennett, R.D.’s suspension and arrest made him look guilty to third parties and was defamatory. Bucknell Defendants also argue that Dean Locher’s statements to Shelly were mere opinions, citing Purcell v. Ewing, 560 F. Supp. 2d 337 (M.D. Pa. 2008). In that case, this Court was dealing with pure insults, such as an accusation that the plaintiff’s photograph “looks to me like” a child molester. Id. at 342-44. Unlike in Purcell, Locher was not merely insulting R.D., but implying that there were defamatory facts undisclosed to Shelley that Shelley did not know about. At the pleading stage, this Court should not conclude that Locher’s statement is a mere opinion. See Rishell, 2007 WL 1545622, at *2 (declining to find statement 45 that plaintiff was “socially inappropriate” was statement of pure opinion at the pleading stage). Pennsylvania follows Restatement (2d) of Torts § 566 that an opinion is actionable “if it implies the allegation of undisclosed defamatory facts as the basis for the opinion.” Green v. Mizner, 692 A.2d 169, 174 (Pa.Super.Ct .1997). “[I]n cases where a plausible innocent interpretation of the communication coexists with an alternative defamatory interpretation, the issue must proceed to a jury.” Id. The Restatement illustrates, “A writes to B about his neighbor C: ‘I think he must be an alcoholic.’ A jury might find that this was not just an expression of opinion but that it implied that A knew undisclosed facts that would justify this opinion.” § 566, Illustration 3. Like the example, Locher’s statement implied Locher’s statement was based upon undisclosed defamatory facts, i.e. R.D. committed a sexual assault. Bucknell additionally denies that R.D. has pled special harm, claiming he was required to plead (1) pecuniary loss or (2) that each statement was made to a nonDefendant. Plaintiffs note that “the relationship of the hearer is irrelevant. As long as the disparagement is communicated to a third person, the element of the cause of action is satisfied.” Bragle v. Revell, 674 F. Supp. 13, 14 (W.D. Pa. 1987). Accordingly, Defendants committed defamation by communicating with each other. 46 Moreover, because R.D. alleges slander per se, he does not have to prove special damages.21 Brinich v. Jencka, 757 A.2d 388, 397 (Pa. Super. Ct. 2000). See Pro Golf Mfg., Inc. v. Tribune Review Newspaper Co., 809 A.2d 243, 247 (2002); Beverly Enterprises, Inc. v. Trump, 182 F.3d 183, 187 n. 1 (3d Cir. 1999). Unlike a standard defamation case, “Generalized damage to reputation and business is presumed as a natural consequence of slander per se.” Clemente, 749 F. Supp. at 680. Unlike Bucknell, which belittles R.D.’s “bemoan[ing]” of his “supposed harm to his reputation,” Bucknell Br. p. 32, this Court must fully accept his allegations as true and take all reasonable in his favor. See Marcone v. Penthouse Intern. Mag. for Men, 754 F.2d 1072 at 1080 (1985) (allowing recovery for humiliation); Brinich, 757 A.2d at 397-98 (sufficient harm where third party might have believed allegations and plaintiff angered by comments). Bucknell argues that the suspension of R.D. and decision to find him responsible for disorderly conduct were not published communications. To publish a statement, one need only communicate it to a third party. Speight v. Pers. Pool of Am., Inc., CIV.A. 93-2055, 1993 WL 276859, at *5 (E.D. Pa. July 20, 1993) (citing Nevertheless, Plaintiffs have alleged specially damages. ¶ 496. He suffered actual loss to his reputation and is now subject to public hatred. ¶¶ 484, 497-498. Many people have declined to associate with him and concluded that he lacked honor and integrity. ¶¶ 481, 499-500. 21 47 Chicarella v. Passant, 494 A.2d 1109, 1112 (1985)). As Plaintiffs have alleged that these communications were communicated to the parties to the disciplinary proceeding and among the Defendants, the claim is sufficient. See also Connor v. Archdiocese of Philadelphia, 601 Pa. 577, 612, 975 A.2d 1084, 1105 (2009) (“[T]hey admit that they distributed the Information Letter to St. Eleanor’s parents...”). Viewing the facts in the light most favorable to Plaintiffs, Bucknell’s officials communicated his guilt to a sexual offense. Because they have sufficient notice of the defamation he complains of, this Court should deny the Motion to Dismiss. H. Bucknell officials committed fraud when they misled R.D. about exculpatory evidence to cover-up their mishandled investigation. Bucknell officials committed fraud in that they misled both the prosecutors and R.D.’s family as to the true facts behind the K.S.’s allegations. ¶ 502. This was done to cover up its incompetence and mishandling of the allegations. ¶ 503. Due to Bucknell’s fraud, R.D. and his family were unable to quickly uncover Bucknell’s misconduct surrounding its investigation of this matter. ¶ 504. Ultimately, his continued criminal prosecution resulted. The elements of fraud are: 48 (1) a representation; (2) which is material to the transaction at hand; (3) made falsely, with knowledge of its falsity or recklessness as to whether it is true or false; (4) with the intent of misleading another into relying on it; (5) justifiable reliance on the misrepresentation; and (6) the resulting injury was proximately caused by the reliance. Kline v. EDS Relocation & Assignment Services, 1:CV-08-0980, 2008 WL 4822026, at *3 (M.D. Pa. Nov. 4, 2008) (quoting Sewak v. Lockhart, 699 A.2d 755, 759 (Pa. Super.1997). Here, (1) Bucknell officials made multiple representations about the lack of available evidence, (2) the representations were material to R.D.’s ability to prove his innocence, (3) the officials knew the representations were false, (4) the representations were made to induce reliance, (5) R.D. justifiably relied on the misrepresentations, and (6) he was injured. Prior to his hearing, Bucknell hid and did not provide several materials that would have aided in R.D.’s defense of the criminal prosecution and Bucknell’s disciplinary proceeding. ¶ 510. Bucknell officials knowingly made materially false representations by withholding exculpatory materials from R.D. prior to Bucknell’s disciplinary hearing. ¶ 511. Specifically, on September 6, Officer Ulmer withheld K.S.’s written statement, claiming that she had not pressed charges yet, a fact that 49 Ulmer knew to be false. ¶ 506.22 R.D. justifiably relied on this representation in not further seeking to obtain a copy of his statement or in seeking to contest any statement K.S. made. ¶ 507. Office Holtzapple was also aware of an audio recording of K.S.’s September 5 statement, but failed to turn this statement over to R.D. ¶ 508. R.D. was prejudiced due to these misrepresentations because he could not contest the obvious falsity of statements that he knew nothing about. ¶ 509. R.D. justifiably relied on these misrepresentations in not taking action he otherwise could have to fully and immediately exonerate himself. ¶ 513. Bucknell made these misrepresentations so that the prosecutors would proceed with the criminal prosecution. ¶ 512. The prosecutors justifiably relied on these misrepresentations in beginning to prosecute R.D., until they realized the charges were baseless. ¶ 514. Bucknell claims that Plaintiffs have failed to plead who committed the fraud, what constituted fraud, where the fraud was committed, when the fraudulent statements were made, or why they were made. However, at the pleading stage, the Complaint sufficiently puts Bucknell on notice of the nature of Plaintiffs’ allegations. Bucknell claims that the officer was correct because charges were not filed until September 7. The officer’s representation was not that charges had not been filed; it was that K.S. had not requested that charges be file. 22 50 In the Duke Lacrosse case, the Court there found similar allegations sufficient where the plaintiffs alleged that the defendants covered up their misconduct by making false representations. McFadyen, 786 F. Supp. 2d at 989. This case is nearly identical to McFadyen, and this Court should allow Plaintiffs’ allegations of fraud to proceed to discovery. I. Bucknell officials conspired with Voci to commit fraud. Bucknell simply points to its prior sections on conspiracy and fraud. Plaintiffs likewise point to the Court to its response to those sections above. J. Bucknell breached its contract with R.D. when it violated its Student Handbook. Accepting the allegations in the Complaint as true, Bucknell’s Student Handbook was part of R.D.’s contract with Bucknell. ¶ 525. Bucknell breached this contract by, inter alia, failing to adequately and impartially investigate the allegations; failing to locate exculpatory information; failing to provide R.D. relevant information; denying R.D. the right to confront his accuser; finding R.D. guilty of Disorderly Conduct despite K.S.’s refusal to answer any questions and a total lack of 51 evidence; failing to grant R.D.’s appeals; and failing to maintain a record of the proceedings. ¶ 526.23 Bucknell faults Plaintiffs for not citing to the contract, but the Student Handbook is the contract. The “relationship between a private educational institution and an enrolled student is contractual in nature; therefore, a student can bring a cause of action against said institution for breach of contract where the institution ignores or violates portions of the written contract.” Swartley v. Hoffner, 734 A.2d 915, 919 (Pa.Super.Ct.1999). “The contract... is comprised of written guidelines, policies, and procedures as contained in the written materials distributed to the student...” Id. See Kimberg v. Univ. of Scranton, 3:06CV1209, 2007 WL 405971, at *3 (M.D. Pa. Feb. 2, 2007). Bucknell attaches the Handbook in an attempt to refute Plaintiffs’ Complaint, but the Handbook supports Bucknell’s breach. Bucknell was required to provide R.D. with “[a] copy of the charge[s] and supporting information, including the Public Safety Information Report, Police Report, Housing and Residential Life Information Report, and statements from any Bucknell Defendants seek the dismissal of Provost Mick Smyer, but this would be premature. At a minimum, he was involved in denying R.D. a recording of the original hearing and the opportunity to create a record of the appellate proceedings. ¶¶ 423-426. Smyer also denied R.D.’s appeal despite all of the procedural errors and clear lack of evidence. See ¶ 430. At this stage, Plaintiffs have sufficiently alleged his involvement in Bucknell’s misconduct. 23 52 witnesses...” Handbook p. 116.24 See id. pp. 114-15 (must provide all reports); id. p. 115 (must show“all documentation”). R.D. had “the right to be advised during the hearing of all the evidence relevant to the charge, to have an opportunity to rebut adverse testimony, and to ask questions of [K.S.]” Handbook p. 122. Bucknell breached this duty when it withheld exculpatory evidence from R.D.25 Bucknell also violated the Handbook when the hearing board considered K.S.’s written statement after she refused to testify. “Witnesses may submit written statements... But such statements cannot be used in the hearing if the authors of the same are not present to answer possible questions that may arise in regard to their written information.” Handbook p. 123. See also id. pp. 135-36 (written statements inadmissible unless witness can be cross-examined); id. p. 123 (“Witnesses... are required to speak candidly and honestly.”). K.S.’s statement was inadmissible because she refused to submit to cross-examination. In considering this statement, Bucknell Bucknell argues that the contract only requires Bucknell to provide information “when appropriate.” Bucknell Br. p. 39. While the timing may be an issue of dispute (which should favor Plaintiffs at this stage in any event), the Handbook clearly requires the disclosure at some point. Even at the hearing, R.D. was notified of additional evidence being withheld. ¶ 313. 24 Bucknell notes that the charges were investigated, but—viewing the evidence in the light most favorable to R.D.—this cannot be sufficient when the investigator intentionally overlooked exculpatory evidence and withheld such evidence from R.D. in violation of the handbook. 25 53 also violated its obligation to support any finding“only on the basis of evidence... which was presented at the hearing...” Handbook p. 123. Bucknell should have dismissed the case outright when she refused to testify. As an accuser, K.S. “must respond to relevant questions posed by [R.D.]” Handbook pp. 124-25. Bucknell argues that dismissal is discretionary, but it still could not be arbitrary. Bucknell had an obligation to deal fairly with R.D. as a party to this contract. Moreover, there was no evidence to support the charges. A student can be found responsible only base upon “a preponderance of the evidence that supports the position that the alleged violation more likely than not occurred in the way charged” Handbook p. 123-25, 136. As every testifying witness refuted the allegations, the evidence was insufficient to prove that K.S.’s allegations were probably correct.26 Bucknell then violated its obligations to R.D. in not granting his appeal. Under the Handbook, it is its “responsibility” “to grant an appeal if... [t]here was a Bucknell argues that the disorderly finding was supported by R.D.’s playfighting. To the contrary, the testimony was that no one intended that anyone get hurt. Such consensual conduct could not be considered disorderly. The definition of Disorderly Conduct reveals that R.D.’s actions weren’t even close. Handbook p. 93. He did not disrupt an event, cause alarm, recklessly endanger others, etc. Id. In any event, the hearing testimony could not support the allegations “in the way charged” by K.S., Handbook p. 124, 136, which was that he was punching her in the vagina and chest, etc. Finally, Plaintiffs note that Bucknell again is viewing the facts in the light most favorable to itself, not the Plaintiffs. 26 54 substantial procedural error, or one or more rights of [R.D.] were significantly abridged in the hearing process, and it had a material effect on the outcome of the case.” Handbook p. 144. There were substantial procedural errors as R.D. was denied exculpatory evidence, K.S.’s statement was improperly admitted, R.D. was denied his right to cross-examine K.S., and there was not any evidence (much less a preponderance) to support the decision where every witness supported R.D. Bucknell argues that the Complaint does not alleged sufficient damages, but Plaintiffs have alleged that as a result of his criminal prosecution and finding of responsibility in the sexual misconduct hearing, R.D. was seriously harmed. ¶¶ 527, 535, 544. He was suspended and incurred attorneys fees and other costs associated with his defense. ¶¶ 442, 449, 469, 476, 522, 551, 560, 573. Therefore, this Court should not dismiss this claim at this early stage in the proceedings. K. Bucknell discriminated against R.D. as a male student accused of sexually assaulting a female student. Bucknell discriminated against R.D., as a male student subject to a school disciplinary action alleging a sexual assault, on the basis of his sex. ¶ 534. In virtually all cases of campus sexual assault, the accused student is male and the accusing student is female. ¶ 532. Bucknell, in the manner in which it approaches the 55 investigation, adjudication and appeal of such allegations, creates an environment in which the accused is so fundamentally denied due process as to be virtually assured of a finding of guilt. ¶ 533. Bucknell received federal funds, ¶ 531, discriminated against R.D., controlled the hearing process, had actual knowledge of the process, was deliberately indifferent to the discrimination, and the discrimination was significant (punishing R.D. without evidence). See Stefanowicz, 2010 WL 3938243, at *4 (citing elements of Title IX claim).Bucknell cites Stefanowicz, but that case was a preliminary injunction case requiring the plaintiff to show a “reasonable likelihood of success”. 2010 WL 3938243, at *3. In ruling on a motion to dismiss,“a complaint may not be dismissed merely because it appears unlikely that the plaintiff can prove those facts or will ultimately prevail on the merits.” Phillips, 515 F.3d at 233 (citing Twombly). R.D.’s allegation differs from K.S.’s allegations in that case, in that R.D. is arguing that Bucknell discriminated against him—not that Bucknell failed to protect him from K.S. This case is more like a Western District case where the Court declined to dismiss Complaints with much less detail than the Plaintiffs’. Mary V. v. Pittsburgh Pub. Sch. Frick Middle Sch., 9-1082, 2010 WL 562909, at *2 (W.D. Pa. Feb. 17, 2010) (“Because Plaintiff is not required to plead detailed facts, I reject Defendants' 56 argument that the Amended Complaint is deficient due to a lack of chronological and other specifics about the Plaintiffs' meetings with school personnel.”). Franchi v. New Hampton School, 656 F. Supp. 2d 252 (D.N.H. 2009), is also distinguishable as in that case, Franchi did “not allege that NHS excluded CF from participation in its programs ‘on the basis of sex,’ but on the basis of her eating disorder.” Id. at 261. Viewing the facts in the light most favorable to R.D., he was treated differently than a female similarly situation (K.S.). As explained above, Bucknell excused her non-compliance from its rules in the hearing and found him guilty without evidence. More importantly, Bucknell ignored the allegations against her in choosing who to charge criminally. K.S. was never charged with disorderly conduct, harassment or assault for yelling profanities in the middle of the night or for repeatedly slapping R.D. to the extent that she had to be restrained. This is in spite of the fact that every witness agreed that she engaged in such behaviors. Accepting these facts as true, Bucknell discriminated against R.D. by treating him differently. L. Bucknell is liable for negligence. Bucknell mis-characterized the truth, ignored clear evidence of R.D.’s innocense, facilitated a process that violated his rights, and removed him from 57 campus to leave him alone at night in a park by himself. ¶ 539.27 Plaintiffs have alleged Bucknell’s duty to its students and violation of that duty, and R.D.’s damages. See Landsman v. Gustin Stone Supply, Inc., 307-CV-00202, 2007 WL 2068223, *3 (M.D. Pa. July 17, 2007). Bucknell claims that the Complaint does not allege causation or damages. R.D. was suspended and incurred attorneys fees and other costs associated with his defense. ¶¶ 442, 449, 469, 476, 522, 551, 560, 573. Bucknell asks this Court to overlook R.D.’s suspension, but his suspension from campus is not insignificant. R.D. lost his educational payments made for that time frame. ¶ 540. R.D. also suffered physical and psychological harm. ¶¶ 441, 448, 470, 477, 515, 523, 561, 574. Bucknell cites the gist of the action doctrine. However, “if the contract is merely collateral to the wrong described, the existence of a contract does not prevent recovery in tort.” Sarsfield v. Citimortgage, Inc., 707 F. Supp. 2d 546, 553 (M.D. Pa. 2010). Here, Bucknell’s negligence extended well beyond its contractual obligations and caused additional harms, such as his false arrest and malicious prosecution. In addition, it is premature to dismiss the tort claim as there are no facts of record at this Like most factual allegations that would defeat its motion to dismiss, Bucknell declines to accept these allegations as true. Bucknell Br. p. 46. This Court, of course, must accept these allegations as true at this stage. 27 58 juncture relating to either the tort or contract claim. Accordingly, this Court should allow him to proceed on both claims so that the record may be developed. M. Bucknell failed to exercise reasonable cause in its hiring, training , supervision and retention of its employees. Bucknell had a duty “to exercise reasonable care in selecting, supervising and controlling employees.” R.A. ex rel. N.A. v. First Church of Christ, 748 A.2d 692, 697 (Pa. Super. Ct. 2000). Here, Bucknell violated this duty by its systemic and grossly inadequate training, supervision and policies. ¶ 543. These allegations are sufficient as they meet the elements of the tort, and dismissal is not warranted.28 N. Bucknell Defendants conspired to interfere with R.D.’s contract. Accepting the allegations in the Complaint as true, Attorney Voci conspired with Bucknell officials, K.S. and her father to interfere with R.D.’s contract with Bucknell. ¶ 553, 554, 557. Voci also conspired with General Counsel Bromfield to not allow R.D. back on campus. ¶ 555. In a telephone call between Voci, Bromfield, Bucknell indicates that they may concede respondeat superior liability. Yet Bucknell has not filed an Answer, there are no facts of record, and Bucknell’s claim of acquiescence to supervisory liability in its Brief is not binding on it later. Accordingly, dismissing this Count at this juncture would be premature. 28 59 and Attorney Becker, Voci demanded that R.D. not be allowed to finish his studies at Bucknell. ¶ 556. All these acts where done with the common purpose between Voci and Bucknell. ¶ 559. These allegations sufficiently plead a conspiracy as well as the overt act: the interference with R.D.’s contract. See Remick v. Manfredy, 238 F.3d 248, 263 (3d Cir. 2001) (setting forth elements of tortious interference). See also Deangelo Bros., Inc. v. Platte River Ins. Co., CIV.A. 3:09-CV-1198, 2010 WL 2635983, at *8 (M.D. Pa. June 29, 2010) (declining to dismiss where Complaint alleged: (1) a contract; (2) “purposeful action... to harm that contractual relationship”; (3) no privilege; and (4) damages). To the extent Bucknell disputes its breach, those arguments are addressed above. Bucknell claims it could not conspire to interfere with its own contract, but cites no legal authority to support this argument. If Bucknell attempts to develop this argument in its Reply Brief, Plaintiffs will seek leave to file a Sur-Reply. O. Bucknell officials intentionally inflicted emotional distress on R.D. Accepting the allegations in the Complaint as true, Attorney Voci and Bucknell officials willfully and maliciously humiliated and scarred R.D. ¶ 564. They made false public statements to portray R.D. as a cruel sex offender. ¶ 564-565. R.D. 60 suffered extreme distress as the result of unjustly being suspended and unable to participate in the campus life he had looked forward to. ¶ 564-565. Their actions distressed him due to the possibility of permanently being barred from campus and never being able to participate in the college experience. ¶ 566. Moreover, as a result of their actions, he was accused of a crime he never committed. ¶ 567. R.D. suffered, and will continue to suffer inter alia, severe emotional distress, mental anguish, embarrassment and humiliation. ¶ 568, 585. Bucknell argues that the actions were not sufficiently outrageous. In Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265, 1274 (3d Cir. 1979) (en banc), the Third Circuit found evidence sufficient to state an IIED claim where a doctor falsely said a player suffered from a fatal disease. In Banyas v. Lower Bucks Hosp., 437 A.2d 1236, 1239 (1981), the Pennsylvania Superior Court found conduct sufficiently outrageous that falsely attributed a person’s death to the plaintiff. This case is like Chuy and Banyas, as Bucknells officials knowingly made false and outrageous claims against R.D. Furthermore, the baseless arrests were outrageous. See Schmoltz, 2000 WL 62600, at *9 (finding false arrest and malicious prosecution sufficiently extreme and outrageous to sustain IIED claim). 61 Bucknell claims that R.D. doesn’t properly allege distress, but his allegations of emotional anguish and the reasons why (suspension, arrest, etc.) are sufficient. See id. at *8 (“The allegation in the Complaint that Schmoltze suffered emotional distress as a result of Defendants' tortious conduct is sufficient at this time to support his cause of action.”). As the Third Circuit recognized when it reversed a district court for dismissing a disability discrimination claim, “Fowler is not required, at this early pleading stage, to go into particulars about the life activity affected by her alleged disability or detail the nature of her substantial limitations.” Fowler, 578 F.3d at 213-14. As in Fowler, R.D.’s allegations are sufficient to survive a motion to dismiss. Bucknell also claims R.D. failed to plead physical injury, but R.D. repeatedly alleges physical injury. See ¶¶ 441, 448, 470, 477, 515, 523, 561, 574. “Ultimately, the plaintiffs must provide competent medical evidence to prove the existence of emotional distress.” Mascarini v. Quality Employment Services & Training, 1:10-CV-1546, 2011 WL 332425 (M.D. Pa. Jan. 31, 2011) (citing Kazatsky, 515 Pa. 183, 527 A.2d 988, 995 (Pa.1987)). “However, at the motion to dismiss stage, it is sufficient that plaintiffs have alleged emotional distress.” Id. Under the liberal pleading standard, the allegations are more than sufficient. 62 P. Bucknell officials conspired with each other and Voci to cause emotional distress to R.D. Accepting the allegations in the Complaint as true, Voci and Bucknell officials conspired to defame R.D. and intentionally inflict this emotional distress by taking action such as barring him from campus that falsely portrayed him in a defamatory light for alleged sexual misconduct. ¶ 570-571. These unlawful acts where done with a common purpose. ¶ 572. Q. Bucknell caused emotional distress to R.D.’s mother, Shelley. Voci and Bucknell officials willfully and maliciously humiliated and scarred R.D.’s mother, Shelley. ¶ 576. They intentionally made false public statements to portray R.D. as a cruel sex offender, which caused Shelley severe distress. ¶ 577-578. Shelley also suffered as the result of her son being unjustly being suspended and unable to participate in campus life. ¶ 578. Shelley was distressed over the possibility of her son being permanently barred from campus. ¶ 579. Shelley was also distressed as a result of the fraudulent criminal charges. ¶ 580. As of September 14, Bucknell officials were aware of Shelley’s condition. ¶ 581. Shelley suffered physical and psychological harm, pain and suffering. ¶ 582. Shelley actually suffered physical injury as the result of these outrageous actions of 63 the Defendants, and grew frail and ill due to Defendants’ actions. ¶ 583.29 After R.D. was falsely arrested the second time, Shelley was so ill and distressed she could not physically drive her car to pick up R.D. ¶ 584. Bucknell argues that her claim should be dismissed because Bucknell’s actions were directed at R.D. However, Shelley was on campus for much of the complained of conduct, and she was present as a member of the public to hear and read the false allegations disseminated about her son. On at least one occasion, the defamatory allegations were made directly to her. ¶ 490(c). At the pleading stage, these allegations are sufficient to put the Defendants on notice of her claims.30 Bucknell argues that Shelley’s claim that she suffered “physical illness” is a “bald conclusion”. Bucknell Br. p. 53. This is a factual statement that this Court must credit coming from Plaintiff Shelley herself. 29 In the alternative, Plaintiffs would seek leave to amend. As an active Bucknell alum, this has destroyed Shelley’s relationship with Bucknell. Shelley was forced to resign from her role as a mentor to students, her involvement with the International Relations Department (having helped begin development of the major as a student in the 1970's) and Global Residential College; and as co-chair of her 35th Reunion Committee (Reunion June 2011). In addition, the Stefanowiz litigation took place over Parents’ Weekend from which the entire family was effectively precluded. The Bucknellian article regarding R.D.’s case was front page Homecoming Weekend while many of her alumni friends, trustees, college friends and son Connor saw the article prominently displayed not only on campus but in numerous business establishments. 30 64 III. CONCLUSION: For the foregoing reasons, this Court should deny Defendants’ Motions to Dismiss except as to Defendants Remley and Rishel. BOYLE, AUTRY & MURPHY /s/ Joshua M. Autry Dennis E. Boyle, Esquire Supreme Court I.D. No. 49618 Joshua M. Autry, Esquire Supreme Court I.D. No. 208459 Megan E. Schanbacher, Esquire Supreme Court I.D. No. 306958 4660 Trindle Road, Suite 200 Camp Hill, PA 17011 Phone: (717) 737-2430 Fax: (717) 737-2452 Email: [email protected] [email protected] [email protected] Dated: January 11, 2012 65 CERTIFICATE OF SERVICE I hereby certify that on the date listed below I electronically filed the foregoing with the Court using the CM/ECF system, which sent notification of such filing to the following person(s) at the following email address(es): Amy C. Foerster, Esquire [email protected] Mark T. Perry, Esquire [email protected] /s/ Penny A. Rogers Penny A. Rogers, Paralegal Dated: January 11, 2012