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September 5, 1997


The opinion of the court was delivered by: KAHN

 I. Introduction

 Presently, all defendants move for summary judgment pursuant to Fed. R. Civ. P. 56(c).

 II. Background

 A. The Alleged Rape and Subsequent Arrest and Prosecution

 During October 1994 the plaintiff and Scott were both students at SUNY Cobleskill. They first met in the early morning hours of October 21, 1994 at a local bar. At about 3:00 a.m. Scott voluntarily accompanied plaintiff back to his dormitory room. It is undisputed that plaintiff and Scott had sexual intercourse while in plaintiff's dormitory room. During the events in the dormitory room, plaintiff's roommate and a female companion were also present in a separate bed.

 After her sexual encounter with plaintiff, Scott appeared at the campus public safety office, with friends, trembling and sobbing, and told Baker and Kowalski that plaintiff had made her have sex with him that morning despite the fact that she said "no" to him several times. Baker Dep. at 87-90. Officer Baker then took Scott to the hospital for examination and treatment at which time Scott prepared a sworn written deposition while at the hospital. Baker Dep. at 19, 27.

 In her written deposition, Scott stated that she "told [plaintiff] & emphasized -- I am not having sex with you! Numerous times I told him that!" Kowalski Aff., Ex. B. She further stated that prior to intercourse, she felt pain when the plaintiff touched her in the vaginal region and wrapped his leg around her. Id. Then, according to her statement, "he put himself on me & before I knew it he inserted his penis into me and obviously I was in a state of shock." Id. According to Officer Baker, Scott stated that "she wanted [plaintiff] arrested." Baker Dep. at 102-3. However, there is no evidence that defendant Scott ever used the words "rape" or "physical force" in describing her sexual encounter with plaintiff to Officers Baker and Kowalski. Id. at 87-89, 110-23.

 While at the hospital, the officers also took sworn statements from two other students, Alec Taylor and Sara Mowrey, who had seen Scott before and after the incident. Notably, in their statements both students stated that Scott used the word "rape" in describing what had happened. Kowalski Aff., Exs. A & C.

 Officers Baker and Kowalski next proceeded to plaintiff's dormitory room and after requesting and receiving permission to do so, the officers searched the room and removed certain items as physical evidence. Subsequently, the officers persuaded plaintiff and his roommate to consent to taped interviews at the public safety office. Kowalski Dep. at 49-52. During the interview, plaintiff admitted that Scott had said "no" to sexual intercourse several times, although it was his belief that she had changed her mind prior to the act. Kowalski Aff., Ex. D at 35. Plaintiff further acknowledged that prior to intercourse, Scott was sobbing and "sounded like a little upset." Id. at 15. Further inquiry by the officers led to plaintiff recalling that Scott had told him that she had almost been raped twice. Id. at 16. Ultimately, plaintiff told the officers that Scott was the aggressor when she "grabbed [plaintiff's] penis and tried to put in into her vagina . . . [while the plaintiff] helped her get it in there." Id. at 19.

 Officer Baker then prepared a felony complaint, charging plaintiff with Rape in the First Degree. This was submitted along with Ms. Scott's supporting deposition to the local town justice in order to obtain a warrant for plaintiff's arrest. Kowalski Dep. at 56; Baker Dep. at 74. A warrant was issued and plaintiff was arrested and arraigned on October 21, 1994, and brought to the Schoharie County Jail, where he was held in lieu of bail, until the preliminary hearing on October 27, 1994.

 According to plaintiff's attorney, at the conclusion of the preliminary hearing the charge of Rape in the First Degree was "reduced" by the village court to misdemeanor sexual misconduct. *fn1" Donohue Aff. P 37-38; Dkt. No. 33. According to the plaintiff's complaint, "on February 7, 1995, upon motion of the plaintiff's attorney, the Village Court dismissed, with prejudice, the charge of sexual misconduct by reason of the absence of any allegation or evidence of forcible compulsion." Cmplt. P 33. After plaintiff commenced the instant action, three new charges were instituted against him by the Schoharie County District Attorney on prosecutor's information: (1) Sexual Abuse in the Third Degree; (2) False Imprisonment in the Second Degree; and (3) Menacing. Klein Aff. P 2. Plaintiff's motion to dismiss these charges has been pending since May 2, 1995.

 In connection with the rape arrest, plaintiff alleges that defendants Baker and Kowalski filed a false rape charge; illegally applied for a warrant; falsely arrested him; maliciously prosecuted him; and "intentionally, recklessly, willfully, maliciously and/or with deliberate indifference and callous disregard of the plaintiff's rights, privileges and immunities guaranteed to him by the First, Fourth, Fifth, Sixth and Fourteenth Amendments of the United States Constitution." Compl. P 38. Plaintiff seeks compensatory and punitive damages against defendants Baker and Kowalski.

 B. The SUNY Cobleskill Disciplinary Hearing

 On October 24, 1994 defendant Brown sent a letter to plaintiff advising him that he was being placed upon immediate temporary suspension due to the criminal charges that were pending against him. This letter also warned plaintiff that he faced charges to be brought under the SUNY Cobleskill Student Conduct Code (the "Conduct Code").

 On October 28, 1994, Scott filed formal charges with Brown's office charging plaintiff with violating the Conduct Code. In particular, Scott charged the plaintiff with violating Rules 7 and 11(b) of the Conduct Code. According to the Conduct Code's preamble, any violation of its provisions can result in "disciplinary action ranging from a warning letter to probation, suspension, or dismissal for the College." Brown Aff., Ex. A. Rule 7 of the Conduct Code provides that it is a "Major Infraction" of the Conduct Code to be guilty of "conduct which threatens or endangers the health or safety of any person." Id. Rule 11(b) provides that it is also a "Major Infraction" of the Conduct Code to be guilty of "sexual misconduct or lewd, indecent, or obscene conduct or expression on College-owned or controlled property or at College-sponsored or supervised functions." Id.

 Plaintiff's parents were given telephone notice of Scott's charges on the same day they were filed. During that telephone conference, plaintiff's parents agreed to a hearing date and time of November 1, 1994 at 4:15 p.m. On October 31, 1994 a "Letter of Summons" containing the charges and noting the time of the hearing was hand-delivered to plaintiff's father.

 A four-member panel consisting of faculty members was convened to preside over the hearing. Plaintiff's counsel, Brian E. Donohue (no relation to plaintiff) sought to represent the plaintiff in the proceedings, but this request was denied. Donohue Aff., PP 43-44, Dkt. No. 41. Plaintiff was, however, given an advisor. *fn2"

 Prior to the commencement of the proceedings, Scott her advisor, and her parents were led to one office. Plaintiff, his advisor, and his parents were led to a separate office. Brown met with each side individually and explained the nature of the proceedings. Upon entering the hearing room, the parties were seated at opposite ends of the room, facing the hearing panel and not each other. The panel's Chief Magistrate also directed that Scott and the plaintiff should only address the panel and not each other due to the sensitive nature of the charges. Plaintiff did not then raise an objection to this change from ordinary Conduct Code procedure which permits the student charged with the opportunity to question all witnesses. Brown Aff., P 26. Thereafter, each student presented the panel with oral testimony regarding the events at issue. After an initial round of testimony, the panel permitted each student to return individually to give a follow-up statement.

 Upon the conclusion of the hearing, the panel deliberated and found the plaintiff guilty as charged. Plaintiff was ordered dismissed from the school, effective November 3, 1994 at 5:00 p.m. Plaintiff appealed the panel's determination administratively and the decision was upheld. However, by letter dated November 21, 1994, defendant Wing modified the penalty imposed to one of suspension for two years. Plaintiff thereafter commenced a proceeding in New York State Supreme Court pursuant to Article 78 of the New York Civil Practice Law and Rules to challenge his suspension. The state court annulled the panel's determination and directed that another hearing be held. The state court further ordered that the October 21, ...

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