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Faiaz v. Colgate University

United States District Court, N.D. New York

November 24, 2014

ABRAR FAIAZ, Plaintiff,
v.
COLGATE UNIVERSITY, et al., Defendants

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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JOSHUA S MOSKOVITZ, ESQ., for Plaintiff.

LAURA A. HARSHBARGER, ESQ., for Defendants.

OPINION

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MEMORANDUM-DECISION and ORDER

Hon. Andrew T. Baxter, United States Magistrate Judge.

Presently before the court is the defendants' motion for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Dkt. No. 21). Plaintiff opposes the motion, and defendants have filed a reply. (Dkt. Nos. 29-30, 33, 36). Plaintiff has also filed a letter, requesting that the court consider additional " previously unavailable" evidence in opposition to defendants' motion, and defendants have opposed. (Dkt. Nos. 39, 40). This matter was referred to me by the Honorable Glenn T. Suddaby, upon consent of the parties, pursuant to 28 U.S.C. § 636(c) for final resolution of this motion only. (Dkt. Nos. 37-38).

I. Background

A. Facts

Both parties have reviewed the facts of this case extensively in their memoranda of law, and the court assumes the parties familiarity with the relevant facts. The motion for judgment on the pleadings applies only to some of plaintiff's claims. However, I will include a brief summary of the facts as stated in the complaint.

In the spring of 2013, Rachel Valdivieso, a Colgate University (" CU" ) student with whom plaintiff once had a brief relationship, reported to CU officials[1] that plaintiff had pushed her in 2012. (Complaint (" Compl." ) ¶ 37) (Dkt. No. 1). Plaintiff alleges that Ms. Valdivieso reported the incident a year after it happened " because of [another] incident from 2011 involving [plaintiff] and another student, Yuliya Karashel." According to plaintiff, Ms. Valdivieso's 2013 allegations were " suspicious," and made only out of jealousy because plaintiff had " rekindled" his relationship with Ms. Karashel. (Compl. ¶ ¶ 2, 38). Specifically, Ms. Valdivieso alleged that in 2011, plaintiff had pushed Ms. Karashel, resulting in her falling, hitting her head against a table, and receiving stitches for the injury. (Compl. ¶ 38). Officer Kane

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prepared an Incident Report, regarding Ms. Valdivieso's email, assigning a " case number" to each incident. (Compl. ¶ 39). The report was dated February 26, 2013 and was sent to defendant Taylor. ( Id.)

When defendant Valerie Brogan, an Investigator in the CU Campus Safety Department, attempted to contact Ms. Valdivieso to schedule a meeting, Ms. Valdivieso responded that " she was on leave from school." (Compl. ¶ 40). Plaintiff alleges that ultimately, defendants determined to investigate the incident between plaintiff and Ms. Karashel, even though she did not personally make the complaint. (Compl. ¶ ¶ 42-44). Defendants Kimberly Taylor[2] and Marilyn Rugg[3] assigned defendant Brogan to conduct the investigation. (Compl. ¶ ¶ 42-44). Defendant Brogan interviewed Ms. Karashel, who prepared an initial written statement at defendant Brogan's request.[4] (Compl. ¶ ¶ 47-51)).

Defendant Brogan contacted plaintiff and scheduled a meeting with him for March 22, 2013. (Compl. ¶ 54). In a letter, dated March 21, 2013, defendant Taylor ordered plaintiff to have no contact with either Ms. Valdivieso or Ms. Karashel. (Compl. ¶ 55). The meeting between plaintiff and defendant Brogan, which was also attended by defendant Christina Khan,[5] took place on March 22, 2013. Plaintiff alleges that the meeting/interrogation was " aggressive" and lasted for an extended period of time. (Compl. ¶ ¶ 75-76). Plaintiff claims that he was deprived of food until shortly after he informed the defendants that he was feeling dizzy and faint. (Compl. ¶ 75). Following the meeting, defendant Brogan prepared a report, plaintiff was given a copy of the March 21st " no-contact" [6] order, and he was told that he was placed on interim suspension. (Compl. ¶ ¶ 77-79). Plaintiff was also informed that his disciplinary hearing would be held on April 1, 2013 " at the earliest." (Compl. ¶ 82).

Defendant Taylor informed plaintiff that he would be detained " in the basement of Curtis Hall," pending his disciplinary hearing, and he would not be allowed to go anywhere else. (Compl. ¶ ¶ 83-84). Plaintiff alleges that defendant Taylor told plaintiff that if he wanted to forego staying in Curtis Hall pending the disciplinary hearing, he could return home to Bangladesh, and CU would pay for the flight. Plaintiff would then be given the opportunity to participate in the disciplinary hearing by " Skype" or by telephone. (Compl. ¶ 85). Plaintiff opted to stay in the United States, and at approximately 10:00 p.m. on March 22, 2013, he was escorted by Campus Safety Officers from the location of his interrogation to his dormitory room, where he was given the opportunity to gather

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some personal belongings and then was taken to Curtis Hall, where he stayed until noon on March 24, 2013. (Compl. ¶ ¶ 86-87).

Plaintiff claims that the Curtis Hall room was dirty, had no " drinking water" in it,[7] and had no cellular reception or Wi-Fi, which prevented plaintiff from communicating with his family or friends. (Compl. ¶ 88). Plaintiff claims that defendant Khan came to visit him in order to encourage him to return home. However, it appears that defendant Kahn was also responsible for having plaintiff escorted back to his dormitory room at approximately midnight on March 22, 2013 so that he could obtain an ethernet cable and " several other belongings." (Compl. ¶ 90). Defendant Khan was also responsible for bringing plaintiff a telephone on March 23, 2013. (Compl. ¶ 95). Plaintiff contacted professor Melissa Kagle,[8] plaintiff's " host" parent. (Compl. ¶ 96). Although plaintiff claims that the request to stay with Professor Kagle was initially " denied," plaintiff was sent home with Professor Kagle and her partner at 11:00 a.m. on March 24, 2013. (Compl. ¶ ¶ 96, 101).

Plaintiff received a " charge letter," stating that plaintiff violated CU policy, based on five incidents involving Ms. Karashel and one incident involving Ms. Valdivieso. (Compl. ¶ 111). The disciplinary hearing was scheduled for April 2, 2013. ( Id.) Plaintiff states that he tried, without success, to adjourn the hearing date.[9] (Compl. ¶ ¶ 122-27). In the interim, on March 29, 2013, plaintiff went to the Campus Security Office to review the evidence against him. (Compl. ¶ 115). Plaintiff claims that while he was reviewing the files, defendants Cook and Tucker verbally harassed him. (Compl. ¶ ¶ 116-18).

Plaintiff claims that eventually, he felt too intimidated to continue reviewing the documents and sent a text message to Professor Kagle in an effort to get a ride back to her house. (Compl. ¶ 118). Defendant Cook " demanded to know" who plaintiff was texting, and " [s]everal minutes later" Professor Kagle was " pulled over by a Hamilton Police Officer," but was not issued a citation. (Compl. ¶ 119). Plaintiff claims that defendant Cook told plaintiff that Cook's " partner" in the Hamilton Police Department told Cook that plaintiff's " host mom" had been pulled over and " would not be coming to get him." [10] ( Id.)

Plaintiff claims that on April 1, 2013, defendants Khan and Suzy M. Nelson[11] held a video " Skype" call with plaintiff's family and told them that criminal charges " may be pursued" against plaintiff. (Compl. ¶ 123). These defendants encouraged plaintiff's family to persuade plaintiff to return home to Bangladesh. ( Id.) Plaintiff's hearing was conducted on April

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2, 2013, under the Equity Grievance Process (" EGP" ), but neither Ms. Karashel, nor Ms. Valdivieso testified. (Compl. ¶ 134). The hearing panel was chaired by defendant Taylor, with defendants Setlak,[12] Palmer,[13] and Darby[14] as members. (Compl. ¶ 135). Defendant Brogan presented the case based upon her investigation. ( Id.) During the hearing, plaintiff claims that he was asked whether his " religion or culture was the reason for his actions." (Compl. ¶ 136). Plaintiff presented two witnesses, but claims that he would have called others if he had been given sufficient time to prepare. (Compl. ¶ 137-38).

After the hearing, defendant Taylor told plaintiff that the panel had decided to expel him, but refused to explain the reasons for the chosen sanction. (Compl. ¶ 140). Defendant Brogan contacted Ms. Karashel to inform her of the panel's decision to expel plaintiff. (Compl. ¶ 142). Plaintiff appealed, defendant Nelson recused herself, and appointed defendant Douglas A. Hicks[15] to hear the appeal. (Compl. ¶ ¶ 143-50). The appeal was supported by a new statement from Ms. Karashel, alleging inter alia, that she was pressured by defendant Brogan to give her earlier statement, and that Ms. Karashel was not aware how her earlier statement would be used. (Compl. ¶ 147). Plaintiff's appeal was denied. (Compl. ¶ 150).

The day after defendants denied plaintiff's appeal, defendants Khan and Taylor contacted plaintiff and told him that he had to leave the country immediately because his student visa was terminated when he was expelled. (Compl. ¶ 159). Plaintiff left Hamilton and moved to New York City in May of 2013. (Compl. ¶ 166). Plaintiff claims that in August of 2013, officers from the Immigration and Customs Enforcment office came to Professor Kagle's door, asking about plaintiff, and " told Prof. Kagle certain things that they could only have learned from Colgate including, that they knew [plaintiff] had stayed with [Kagle] and that he had been " 'kicked off campus.'" (Compl. ¶ 160).

B. Procedure

Plaintiff has sued CU, its Board of Trustees, and several of its employees in conjunction with his claim of improper and discriminatory expulsion from CU in 2013. ( See Compl.) Plaintiff challenges all aspects of the procedures used to discipline him as well as the discipline imposed. The complaint contains fourteen causes of action. (Compl. ¶ ¶ 201-267). Plaintiff alleges violations of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq.; [16] violations of Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681 et seq.; [17] violations of 42 U.S.C. § § 1981, 1983, 1985(3), and 1986; [18] violations of the New York State Constitution; [19] violations of the New York State Human Rights Law

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(" HRL" ), N.Y. Exec. Law § 296(4); [20] and state common law claims of False Imprisonment; Breach of Contract, Failure to Substantially Observe the University's Established Procedures, Negligence, Intentional Infliction of Emotional Distress, and " Respondeat Superior." [21]

II. Judgment on the Pleadings

A. Legal Standards

After the pleadings are closed, a motion to dismiss for failure to state a claim is properly brought as a motion for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). Maggette v. Dalsheim, 709 F.2d 800, 801 (2d Cir. 1983) (citations omitted). See Fed.R.Civ.P. 12(b), 12(c) and 12(h)(2). The motion for judgment on the pleadings is then treated according to the same standard as a motion to dismiss under Rule 12(b)(6). Id.

To survive dismissal for failure to state a claim, the complaint must contain sufficient factual matter, accepted as true, to state a claim that is " plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell A. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). " Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id. (citing Bell A. Corp., 550 U.S. at 555). Plaintiff's factual allegations must also be sufficient to give the defendant " 'fair notice of what the . . . claim is and the grounds upon which it rests.'" Bell A. Corp., 550 U.S. at 555 (citation omitted). When ruling on a motion to dismiss, the court must accept as true all of the factual allegations contained in the complaint and draw all reasonable inferences in the non-movant's favor. Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 71 (2d Cir. 1995).

In deciding a motion to dismiss, the court considers the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice. Roberts v. Babkiewicz, 582 F.3d 418, 419 (2d Cir. 2009). The court may review documents integral to the complaint upon which the plaintiff relied in drafting his pleadings, as well as any documents attached to the complaint as exhibits and any statements or documents incorporated into the complaint by reference. DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d Cir. 2010); Rothman v. Gregor, 220 F.3d 81, 88 (2d Cir. 2000); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d at 72 (the court may take into consideration documents referenced in or attached to the complaint in deciding a motion to dismiss, without converting the proceeding to one for summary judgment).

However, even if a document may be considered " integral" to the complaint, " 'it must be clear on the record that no dispute exists regarding the authenticity or accuracy of the document.'" DiFolco, 622 F.3d at 111 (quoting Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006)). It must also be clear that " 'there exist no material disputed issues of fact regarding the relevance of the document.'" Id. The court may properly consider documents or information contained in defendants' motion papers if the plaintiff has knowledge of the material and relied on it in drafting the complaint. Galtieri

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v. New York City Police Pension Fund, No. 12 Civ. 1159, 2014 WL 4393927, at *7 (S.D.N.Y. Sept. 15, 2014) (citations omitted).

B. Application

Before I consider the merits of defendants' motion for partial judgment on the pleadings, I must resolve the issue of which documents may be reviewed as part of the motion.

1. Defendants' Materials

There are two ways in which the defendants' documents may be considered: either as exhibits to their answer or as materials integral to the complaint.[22] Fed.R.Civ.P. 10(c) provides that " [a] copy of a written instrument that is an exhibit to a pleading is a part of the pleading for all purposes." As " part of" the answer, any instruments attached thereto would then be considered in a motion for judgment on the pleadings.

Plaintiff argues that the defendants' declarations and the emails referenced therein are not " instruments" for purposes of Rule 10, notwithstanding that they are attached to the answer. Plaintiff argues that the instruments to which Rule 10 refers are documents such as contracts, wills, promissory notes, or share certificates: written legal documents that define rights, duties, entitlements or liabilities. (Pl.'s Mem. of Law at 14) (citing Black's Law Dictionary) (Dkt. No. 33). See United States v. Int'l Longshoremen's Assn., 518 F.Supp.2d 422, 465 (E.D.N.Y. 2007) (defining " instrument" as a document such as a deed, will, bond, lease, insurance policy, or security agreement). This court need not decide whether the documents attached to the defendants' answer are " instruments" for purposes of Rule 10(c) because the documents are all referenced in, and integral to, the complaint.

Defendants have attached two declarations to their amended answer. The first " declaration" is by defendant Brogan, and the second declaration is by defendant Taylor. (Dkt. No. 16-1, 16-2). The Brogan Declaration states only that she is employed by CU as an Investigator for the CU Security Department, who was directly involved in investigating the complaints levied against plaintiff. (Brogan Decl. ¶ 1). The rest of the declaration refers to documents, attached as exhibits to the declaration, with a citation to the paragraph in the complaint where the document is mentioned and relied upon for plaintiff's claims. (Brogan Decl. ¶ ¶ 2-3). These exhibits were filed under seal and include the complainant's first statement.

In Kimberly Taylor's declaration, she states that she is employed by CU as the Associate Dean for Conduct and the CU Disciplinary Officer. (Taylor Decl. ¶ 1). She states that she is responsible for overseeing the CU student disciplinary policies and procedures, and that she was directly involved in the disciplinary charges and procedures that are the subject of plaintiff's action. ( Id.) The rest of the declaration simply refers to documents, attached as exhibits to her declaration, with a citation to the paragraph where the document is mentioned and relied upon in the complaint.

The defendants' declarations do not contain contested statements of fact. The defendants simply identify themselves and identify the documents which are attached to their declarations, all of which are also referenced in the complaint. None of the identifying information in the declarations is disputed by plaintiff, and each document

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attached to the defendants' declarations is incorporated by reference and relied upon in the complaint as part of the basis for plaintiff's claims. In L 7 Designs, Inc. v. Old Navy, LLC, 647 F.3d 419, 421-22 (2d Cir. 2011), the Second Circuit held that emails attached to a defendant's answer/counterclaim were properly considered and stated that '[t]here is no question that the email exhibits were " attached" to Old Navy's Answer, even if they were only " part of" Old Navy's Counterclaims. Id. (citing Fed.R.Civ.P. 10(c). The court also stated that plaintiff L-7 had notice of all the emails in question " because L--7 sent or received them." Id. See also Viteritti v. Incorporated Village of Bayville, 831 F.Supp.2d 583, 589 (E.D.N.Y. 2011) (court considered materials attached to answer under Rule 10(c)).

The same is true for the emails attached to defendant Taylor's declaration. Plaintiff either sent or received the emails that are attached to this declaration, and plaintiff incorporated them by reference into his complaint. Plaintiff claims that the documents attached to the Brogan declaration, consisting of the emails by the two alleged victims in this case, are hearsay and incomplete.[23] In DJL Mortgage Cap., Inc. v. Kontogiannis, 726 F.Supp.2d 225, 233-34 (E.D.N.Y. 2010), the court cited United States v. Int'l Longshoremen's Assn. and stated that " the court did not intend to state a hard and fast rule that the only acceptable 'exhibits' are those with independent legal effect." 726 F.Supp.2d at 234. The reason that the exhibits to the pleading were rejected in Longshoremen's Assn. is that they consisted of " lengthy pleadings in prior legal actions involving the defendants," and contained " 'entire legal theories that appear[ed] nowhere on the face of the Amended Complaint." Id.

In Routh v. University of Rochester, 981 F.Supp.2d 184, 191 (W.D.N.Y. 2013), in conjunction with a very similar set of facts, the court specifically considered the dean's letter to the plaintiff, containing the disciplinary charges against him; the university's standard of conduct; the university's written decision to expel the plaintiff; the plaintiff's appeal of the expulsion; the decision denying the appeal; and various other documents that the court found were " integral to the complaint," and incorporated by reference, because plaintiff had relied upon them in drafting his pleadings. The court also noted that the " documents [were] integral to understanding the underlying administrative proceeding" that plaintiff maintained was " arbitrary and capricious." Id.

In this case, the exhibits attached to the defendants' declarations do not pose any new allegations or theories, and both plaintiff and defendants were well aware of the documents and the facts asserted therein. Plaintiff cites Rose v. Bartle, 871 F.2d 331, 339 n.3 (3d Cir. 1989) for the proposition that lengthy exhibits containing " evidentiary matter" should not be attached to the pleadings. The court in Rose also rejected the idea that affidavits were appropriate as attachments to pleadings. Id. The declarations in this case are not the kind of affidavits that contain " lengthy" evidentiary material. The affidavits only identify the documents attached, and the documents are only those referred to by plaintiff in drafting the complaint. Thus, the court will consider the additional materials attached to defendants' answer.

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2. Plaintiff's Additional Materials

On September 9, 2014, plaintiff's counsel filed his own set of documents and requested that the court consider them in deciding this motion. (Dkt. Nos. 29, 30). These materials consist of plaintiff's own " Declaration," together with a document identified as Ms. Karashel's second statement. (Dkt. No. 30); a " Voluntary Statement" in an unrelated matter (Pl.'s Ex. 1) (Dkt. No. 29); a " Notice of Intent to Use Identification Evidence" in an unrelated matter (Pl.'s Ex. 2) (Dkt. No. 29); the response to another student's disciplinary appeal, written by defendant Suzy M. Nelson (Pl.'s Ex. 3) (Dkt. No. 29); the CU Code of Student Rights and Responsibilities (excerpted from the CU Student Handbook, 2014-15) (Pl.'s Ex. 4) (Dkt. No. 29); and the Statement of Nondiscrimination Policy, (excerpted from the CU Student Handbook, 2014-15) (Pl.'s Ex. 5) (Dkt. No. 29).

Most recently, plaintiff has requested that the court consider two additional documents. (Dkt. No. 39). One document is a report, dated June 2, 2014, from the Advisory Committee on Campus Security, (Dkt. No. 39-1), and the second document, is a Memorandum, written by defendant President Jeffrey Herbst, with the subject title " Response to Advisory Committee on Campus Safety Report." (Dkt. No. 39-2). This memorandum responds to questions and " concerns" regarding the Equity Grievance Policy and process. ( Id.)

Plaintiff's declaration contains additional facts and arguments that this court will not consider in a motion for judgment on the pleadings. The court does note that in his complaint, plaintiff does refer to a " second statement" by Ms. Karashel (Compl. ¶ 147). The complaint alleges that plaintiff's " appeal" was supported by this second statement. ( Id.) However, the court also notes that the statement attached to plaintiff's declaration is unsigned, undated, and unattested. To the extent that plaintiff claims that this is the statement that he attached to his appeal, the court could consider it as incorporated by reference.

Plaintiff has filed additional materials that are totally unrelated to his case, both in his initial opposition to the defendants' motion and in his October 2014 submission of two additional documents. They include documents that plaintiff could not have relied upon in drafting the complaint, particularly documents from unrelated investigations in which defendant Brogan appears to have been involved, and assessments of the Equity Grievance Process (" EGP" ), drafted long after the incidents in this case occurred and were investigated. These documents may not be considered in a motion for judgment on the pleadings, and this court will not convert the motion into one for summary judgment to consider these materials. ( See Pl.'s Ex. 1-3 in Dkt. No. 29 and Pl.'s Ex. 1-2 in Dkt. No. 39).

Plaintiff has also submitted excerpts from CU's Student Handbook for 2014-15. To the extent that the Student Handbook is publicly available on the CU website, the court may consider it as the current handbook.

III. Color of State Law

A. Legal Standards

To state a claim under section 1983, the plaintiff must allege both that the defendant has violated plaintiff's rights under either the Constitution or laws of the United States and that the defendant acted " under color of state law." Rae v. City of Suffolk, 693 F.Supp.2d 217, 223 (E.D.N.Y. 2010); 42 U.S.C. ยง 1983. A person acts under color of state law when he or she ...


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