FOURTH JUDICIAL CIRCUIT OF VIRGINIA . CIRCUIT COURT OF THE CITY OF NORFOLK
EVERETT A. MARTIN, JR.
100 ST. PAUL'S BOULEVARD NORFOLK, VIRGINIA 23510
JUDGE
April 13, 2007
Howard E. Copeland, Esq. 870 North Military Highway, Suite 215 Norfolk, Virginia 23502 James D. Wright, Esq. Office of University Counsel 214 Koch Hall Norfolk, Virginia 23529
Re: Jonathan L. Long v. Commonwealth of Virginia, et al., Civil No.: CL06-2307 Justin L. Long v, Commonwealth of Virginia, et al., Civil No.: CL06-2308 Brandon E. Partin v, Commonwealth of Virginia, et al., Civil No.: CL06-2309 Dear Gentlemen: The plaintiffs have filed these actions against the Commonwealth, Norfolk State University (the "University"), its rector and board of visitors, its president, a vice-president, a hearing officer, unknown University police officers, and Rodney Duckett. All the defendants save the unknown police officers and Mr. Duckett have filed answers and numerous defensive pleas. These actions arise out of a series of events that began on March 22, 2005, when Mr. Duckett made a report to the University police that the plaintiffs had "physically attacked" him on the University campus that afternoon. The plaintiffs allege the complaint was false and that the University police did not adequately investigate the complaint or even interview Mr. Duckett. The incident report indicated "apparent minor injury." The plaintiffs go on to allege that a University police officer drove Mr. Duckett to the magistrate's office and assisted him in obtaining warrants against the plaintiffs. A magistrate did issue warrants charging the plaintiffs with assault by mob. Code of Virginia ยง18.2-42.
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The University police arrested the plaintiffs the next day. The manner of the arrests differ. Mr. Jonathan Long alleges he was handcuffed, held onto by the back of his belt, marched past fellow students, and transported to the magistrate. Mr. Justin Long claims he was taken outside his dormitory in his underwear for about one-half hour, then allowed to dress, handcuffed, and transported to the magistrate using unspecified "excessive force." Mr. Brandon Partin alleges he was arrested in his dormitory room and one officer said he would shoot if Mr. Partin ran. He also claims to have been handcuffed and transported to the magistrate with unspecified "excessive force." The plaintiffs go on to claim the University police ignored their rights to be free from false arrest and are inadequately trained. Each plaintiff denies having been at the scene of the events Mr. Duckett alleged. Mr. Duckett did not appear for the trial of the criminal charges and the Norfolk General District Court dismissed them on May 31. The University instituted disciplinary charges against the plaintiffs arising out of Mr. Duckett's allegations. All the plaintiffs appeared at the hearing on April 7 before Mr. Alexander. Each was found in violation of the University's Code of Student Conduct for "physical abuse" and suspended. They claim there was no evidence of physical abuse, the decision was arbitrary and capricious, the hearing lacked "rudimentary due process," the sanctions imposed on the three plaintiffs varied, and that Mr. Alexander was incompetent and indifferent to their rights. Each plaintiff appealed his suspension to Mr. Curtis, the vice-president for student affairs. Mr. Jonathan Long's and Mr. Partin's appeals were denied without explanation. That of Mr. Justin Long was not responded to until a letter was delivered to him in court on August 23,2005. It would appear his appeal was also denied. The plaintiffs claim Mr. Curtis failed to provide them due process, was incompetent, and failed to exercise adequate supervision over the disciplinary process. The plaintiffs claim that Mr. Schexnider, the president of the University, had a duty to manage all the employees of the University and knew or should have known or was indifferent to the complained of actions of the University police officers, Mr. Alexander, and Mr. Curtis. They claim the University, the rector, and board of visitors have breached the contracts each had with the University and denied them due process from the actions complained of. Each plaintiff has claimed humiliation, deprivation of civil rights, physical liberty, and administrative due process, his right to pursue his education, loss of earning power, emotional damage, pain and suffering, injury to reputation, and other similar damages. Mr. Jonathan Long also claims the University police have engaged in a vendetta against him since the first incident, most recently resulting in a false charge of assaulting a
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University police officer. No date is given for this incident and no other specifics ofthe "vendetta" are mentioned. The amended complaint contains six causes of action. First, false arrest and false imprisonment against Mr. Schexnider, the unknown police officers, and Mr. Duckett. Second, liability of the Commonwealth under the Tort Claims Act "for the negligence of the employees" of the University. Third, the liability of the same defendants named in the first cause of action for "physical and emotional injury, at common law." Fourth, the liability of the Commonwealth under the Tort Claims Act "for physical and emotional injury by the negligence and willful misconduct" of the University's employees. Fifth, violations of 42 U.S.c. §1983 by Mr. Schexnider, Mr. Curtis, and Mr. Alexander. Sixth, breach of contract and denial of property interests by the University, its rector, and board of visitors. The University defendants and the Commonwealth have filed demurrers, motions to dismiss, and motions for summary judgment. I find I need not consider all of them at this time.
First Cause of Action against Mr. Schexnider There is no allegation implicating Mr. Schexnider in any way in the plaintiffs' arrests. A magistrate issued warrants for the arrest of the plaintiffs. As required by Code of Virginia §19.2-72, the warrants commanded the officers to arrest the plaintiffs. Mr. Schexnider's demurrer to this cause of action is sustained without leave to amend.
Second and Fourth Causes of Action against the Commonwealth These causes of action both allege the Commonwealth is liable for the negligence of its employees and the fourth cause of action also alleges willful misconduct. Mr. Copeland stated at the hearing on February 27 that he is not alleging intentional infliction of emotional distress. I do not know what intentional torts the plaintiffs are pleading. The Commonwealth has moved to dismiss the second (but not the fourth) cause of action because the plaintiffs failed to provide notice as required by Code of Virginia §2.2 814. I do not believe this statute applies to tort claims. This statute was put in nearly its present form by 1966 Acts of Assembly c. 677. The Commonwealth was immune from suit in tort at that time. Elizabeth River Tunnel District v. Beecher, 202 Va. 452, 117 S.E.2d 685 (1961). The Virginia Tort Claims Act was enacted by 1981 Acts of Assembly, c. 449 and has always contained its own notice provision. Code of Virginia §8.01-195.6. The motion to dismiss is denied. The Commonwealth has moved for summary judgment on the fourth (but not the second) cause of action because the record clearly indicates the plaintiffs received due
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process at the disciplinary hearing. At the hearing of February 27, Mr. Copeland agreed I could consider the transcript of the hearing for purposes of these motions. I have reviewed the transcript of the hearing. It was not conducted with the formality of a trial in court, nor with the thoroughness one would expect if experienced and competent counsel were involved. Nonetheless, I find it was fundamentally fair. The plaintiffs were given notice of the hearing and the opportunity to be heard. This is all due process requires in such a proceeding. Tigrett v. Rector & Visitors Univ. of Va., 290 F.3d 620 (4th Cir. 2002), Henson v. Honor Committee, 719 F.2d 69 (4th Cir. 1983). They admit in their pleadings they knew of the hearing. The plaintiffs were also allowed to hear Mr. Duckett testify and to put on witnesses and evidence in their defense. They declined the opportunity to hire attorneys for the disciplinary hearing. Mr. Copeland made much that the charge against the plaintiffs was "physical abuse" but Mr. Duckett's testimony showed no physical contact. Courts should not expect a university's code of student conduct to be written with the precision of a law dictionary. For what it is worth I note that "family abuse," for which a protective order may be issued, does not require physical contact. Code of Virginia §§16.1-228, 16.1-253.1. 16.1-279.1. Lastly, it ought not be the business of the courts to construe school disciplinary regulations. \'Vood v. Strickland, 420 U.S. 308, 326 (1975). Mr. Alexander was charged to evaluate the testimony of the witnesses and to determine the sufficiency of the evidence. There was sufficient evidence from which he could conclude the plaintiffs assaulted Mr. Duckett (Transcript pp. 6-7). Physical contact is not necessary for an assault. Carter v. Commonwealth, 269 Va. 44, 606 S.E.2d 839 (2005). Furthermore, contrary to Mr. Copeland's contention that Mr. Duckett could not identify the plaintiffs, he said he saw them, that he knew Mr. Partin from high school, and that someone told him their names. (fr. pp. 7,9, 11). I grant the Commonwealth's motion for summary judgment to the fourth cause of action and I find there was neither "negligence" or "willful misconduct" in the conduct of the disciplinary hearing.
Third Cause of Action against Mr. Schexnider This claim is "for physical and emotional injury at common law" based on the allegations already described. There is no allegation against Mr. Schexnider in this entire business except his duty to supervise the operations of the University. A college president is not, ex offiao, individually liable at common law for the torts of his subordinates. Furthermore, the plaintiffs have pleaded that Mr. Schexnider is the University'S president and had "a duty to manage all of the employees of the University." As a supervisory employee of the Commonwealth he is immune from suit for acts of simple negligence within
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the scope of his employment. Messina v. Burden, 228 Va. 301, 303, 321 S.E.2d 657 (1984). I sustain Mr. Schexnider's demurrer to this cause of action without leave to amend.
Fifth Cause of Action against Mr. Schexnider, Mr. Curtis, and Mr. Alexander This claim is for a denial of civil rights under 42 U.S.c. §1983. The defendants have demurred. As I have already found no impropriety in the plaintiffs' arrests or in the conduct of their disciplinary hearings, there is little else to say. "To state a claim for relief in an action brought under §1983, [plaintiffs] must establish they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed under color of state law." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50 (1999). The plaintiffs allege violations of their due process rights to liberty or property under the 14 th Amendment. There can be no doubt that the University officials are state actors operating "under the color of state law." I will assume, without deciding, that a property or liberty right exists in continued enrollment in a university Tigrett, supra; Cobb v. Rector & Visitors of the Univ. of Va., 69 F. Supp. 2d 815, 826 (1999), aJl'd. 229 F.3d 1142 (4th Cir. 2000). Nonetheless, the disciplinary procedures employed to suspend the plaintiffs were "constitutionally adequate." Tigrett, supra; Henson, supra; Cobb, supra. The plaintiffs received the rudiments of due process notice and the opportunity to be heard. I decline the plaintiffs' invitation to re-weigh the evidence. In performing his duties and exercising his judgment, Mr. Alexander was in a much better position to judge the credibility of witnesses and make any legal and factual determinations. "The judicial model of an evidentiary hearing is neither a required, nor even the most effective, method of decision-making in all circumstances." Henson, 719 F.2d at 73. As the Supreme Court held in Wood v. Strickland, supra: It is not the role of the federal courts to set aside decisions of school administrators which the court may view as lacking in wisdom or compassion .... §1983 does not extend the right to relitigate in federal court evidentiary questions arising in school disciplinary proceedings or the proper construction of school regulations. 420 U.S. at 326. The plaintiffs argued at the hearing and in their brief that the University violated its own appeals procedures and thus denied them due process. While a violation of school procedures can be a denial of due process if there is reasonable and detrimental reliance
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Cobb, supra, the plaintiffs have not shown that they detrimentally relied on the University appeals process. In fact, the only regulation they plead has been violated is ยงVI. D.5 of the Student Disciplinary Policies and Procedures, which they claim requires that any violation be "supported by the evidence." I have concluded there was evidence to support Mr. Alexander's finding of a violation and that the plaintiff received due process. ''When the minimal due process requirements of notice and hearing have been met, a claim that an agency's policies or regulations have not been adhered to does not sustain an action for redress of procedural due process violations." Goodrich v. Newport News School Board., 743 F.2d 225, 227 (4th Cit. 1984). With respect to Mr. Schexnider and Mr. Curtis, the plaintiffs cannot demonstrate supervisory liability under ยง1983. The plaintiffs must establish three elements to demonstrate a supervisory liability claim: (1) that the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed 'a pervasive and unreasonable risk' of constitutional injury to citizens like them; (2) that the supervisor's response to that knowledge was so inadequate as to show 'deliberate indifference to or tacit authorization of the alleged offensive practices,' and (3) that there was an 'affirmative causal link' between the supervisor's inaction and the particular constitutional injury suffered by them. Tigrett, 290 F.3d 620, 630 (citing Shaw v. Stroud, 13 F.3d 791, 799 (4th Cit. 1994)). As the plaintiffs have failed to demonstrate a constitutional injury, they cannot satisfy the third element of the Shaw test. No "affirmative causal link between the supervisor's inaction and any constitutional injury" has been shown. Id at 631. With respect to Mr. Curtis, due process does not require an appellate tribunal to give a reason for denying the appeal. If it did we would not have per curiam opinions. With respect to Mr. Alexander, I find he did not violate ยง1983. The plaintiffs cannot establish bias or incompetence by conclusory allegations. Mr. Alexander exercised judgment in weighing the evidence and conducting the proceedings. "[A]lleged prejudice of university hearing bodies must be based on more than mere speculation and tenuous inference." Gorman v. Univ. Rhode Island, 837 F.2d 7, 22 (1 st Cit. 1988) ("iting Duke v. North Texas State Dniv., 469 F.2d 829, 834 (5th Cit. 1972)). Furthermore, due process does not require a judge to impose the same sentences on co-defendants. With respect to the claim for a denial of "substantive due process," my conscience is not shocked by the allegations. "A violation of 'substantive' due process occurs only where the government's actions in depriving a person of ... liberty or property are so unjust that no amount of 'fair procedure can rectify them.'" Love v. Pepersack, 47 F.3d 120, 123 (4th Cir. 1995). To establish a violation of "substantive due process," the plaintiffs must
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demonstrate: "[A]rbitrary and capricious conduct on the part of the university officials by showing that there was no rational basis for the university's decision or ... that the dismissal was motivated by bad faith or ill will unrelated to academic performance." Cobb, 69 F. Supp. 2d 815, 826 (citations omitted). As there was evidence against the plaintiffs at the disciplinary hearing, there was a rational basis for the University officials' actions. The same is true for the plaintiffs' arrests. The warrants provided a rational basis for the University officials' actions in their execution. The plaintiffs simply cannot demonstrate that the defendants' actions were so arbitrary and capricious as to "shock the conscience." County of Sacramento v. Lewis, 523 U.S. 833 (1998). Finding no due process violations, I sustain the demurrers.
Sixth Cause of Action against the University, the Rector, and the Board of Visitors These defendants have flied no demurrer to the alleged violation of constitutional rights. I am unable to rule on the motions relating to a breach of contract because the terms of the contract are not stated in the amended complaint. Within twenty-one days of the date of this letter the plaintiffs shall file with the Clerk all documents they claim constitute the contract, with copies to Mr. Wright. An order is attached.
Sincerely yours,
(~, ..~iMA.. C--~ , Everett A. Martin, Jr. Judge EAM,jr/hmh Attachment
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VIRGINIA: IN THE CIRCUIT COURT OF THE CITY OF NORFOLK
JONATHAN L. LONG Plaintiff
At Law No.: L06-2307
v.
COMMONWEALTH OF VIRGINIA, et aI. Defendants
JUSTIN L. LONG Plaintiff
At Law No.: L06-2308
v.
COMMONWEALTH OF VIRGINIA, et sl. Defendants
BRANDON E. PARTIN Plaintiff
At Law No.: L06-2309
v.
COMMONWEALTH OF VIRGINIA, et a1. Defendants
ORDER For reasons stated in the Court's letter of this day: 1. The demurrers of Mr. Schexnider to the plaintiffs' first cause of action are sustained without leave to amend. 2. The demurrers of Mr. Schexnider to the plaintiffs' third causes of action are sustained without leave to amend. 3. The Commonwealth's motion for summary judgment to the plaintiffs' fourth )
cause of action is granted. 4. The demurrers of Mr. Schexnider, Mr. Curtis, and Mr. Alexander to the plaintiffs' fifth causes of action are sustained. Jonathan Long is granted leave to amend to
allege in detail the "vendetta" he claims officers of the University have conducted: Justin Long and Brandon Partin are denied leave to amend. 5. The plaintiffs are granted twenty-one days to file with the clerk the documents they claim constitute the contract at issue. Endorsements are waived pursuant to Rule 1:13. The Clerk shall send copies of this order to counsel for the parties.
Enter: Apri113, 2007
~tJCML , Judge