Klunder v. Trs. & Fellows of the Coll.

JOE KLUNDER, Plaintiff,

v. TRUSTEES AND FELLOWS OF THE COLLEGEOR UNIVERSITY IN THE ENGLISH COLONYOF RHODE ISLAND AND PROVIDENCE PLANTATIONS,IN NEW ENGLAND, IN AMERICA, later known as BROWNUNIVERSITY IN PROVIDENCE IN THE STATE OF RHODEISLAND, AND PROVIDENCE PLANTATIONS; RUTHSIMMONS (in her individual and official capacities);CARLA HANSEN (in her individual and official capacities);MARGARET KLAWUNN (in her individual and official capacities);TERRY ADDISON (in his individual and official capacities);J. ALLEN WARD (in his individual and official capacities);RICHARD BOVA (in his individual and official capacities);ROBERT ENOS (in his individual and official capacities);PHILIP GRUPPUSO (in his individual and official capacities);DAVID KERTZER (in his individual and official capacities);YOLANDA CASTILLO APPOLLONIO, ESQ. (in her individualand official capacities); JANE DOE, ESQ. (a Brown Universityattorney presently unknown to Plaintiff) (in her individual and official capacities), Defendants.

C.A. No. 10-410 ML

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF RHODE ISLAND

May 9, 2013

MEMORANDUM AND ORDER

I. Procedural Background

Plaintiff filed an eleven-count complaint against Brown University ("Brown") and individuals employed by Brown (collectively "Defendants") alleging violations of 42 U.S.C. § 1983 and Rhode Island law. The parties cross-moved for summary judgment on count 1 of the complaint in which Plaintiff sought a declaratory judgment that Brown was a state actor pursuantto 42 U.S.C. § 1983. The Court denied Plaintiff's motion and granted Defendants' motion with respect to all Defendants except Brown, Ruth Simmons ("Simmons") and Robert Enos ("Enos").¹ Subsequent to that ruling, Defendants filed a motion to dismiss several counts in the complaint. On November 27, 2012, the Court dismissed Plaintiff's false arrest and false imprisonment claims. The matter is now before the Court on Defendants' motion for summary judgment on the remaining counts in the complaint.

II. Standard of Review

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). An issue is "genuine" if the pertinent evidence is such that a rational factfinder could resolve the issue in favor of either party, and a fact is "material" if it "has the capacity to sway the outcome of the litigation under the applicable law." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995).

The moving party bears the burden of showing the Court that no genuine issue of material fact exists. Id. Once the movant has made the requisite showing, the nonmoving party must point to specific facts demonstrating a trial worthy issue. Id. The Court views all facts and draws all reasonable inferences in the light most favorable to the nonmoving party. Continental Casualty Co. v. Canadian Universal Insurance Co., 924 F.2d 370 (1st Cir. 1991).

To aid the Court in identifying genuine issues of material fact, this District has adopted Local Rule Cv 56. "Valid local rules are an important vehicle by which courts operate. Such rules carry the force of law . . . and they are binding upon the litigants and upon the court itself . .. ." Air Line Pilots Association v. Precision Valley Aviation, Inc., 26 F.3d 220, 224 (1st Cir. 1994) (citations and footnote omitted). Local Rule Cv 56 provides that in addition to a memorandum of law, the moving party "shall" also file a separate statement of undisputed facts. D.R.I. LR Cv 56(a)(1). That statement, among other things, must "identify the evidence establishing [the] fact . . . ." Id. at (a)(2). An "objecting party that is contesting the movant's [s]tatement of [u]ndisputed [f]acts shall file a [s]tatement of [d]isputed [f]acts . . . which shall identify the evidence establishing the dispute . . . ." Id. at (a)(3). "[A]ny fact alleged in the movant's [s]tatement of [u]ndisputed [f]acts shall be deemed admitted unless expressly denied or otherwise controverted by a party objecting to the motion." Id.

In their motion papers, at times, both parties have failed to comply fully with Local Rule 56. Parties who ignore Local Rule Cv 56 do so at their own peril. Gosselin v. Webb, 242 F.3d 412, 415 n.2 (1st Cir. 2001). In some instances in Defendants' statement of undisputed facts, the citation to the evidence, purportedly to establish the fact, does not support the fact statement. See generally D.R.I. LR Cv 56(a)(2). Plaintiff attempts to dispute and/or add facts solely through his memorandum supporting his objection and, at times, he fails to identify the evidence establishing the alleged dispute. See D.R.I. LR Cv 56(a)(3); see generally Pope v. Potter, No. 03-544-ML, 2005 WL 3178179, at *2 (D.R.I. November 28, 2005) (under similar prior version of the local rule, court held that an "attempt to dispute facts by merely incorporating them into a memorandum opposing a motion for summary judgment does not meet the requirements of the [local] rule; a separate statement must be filed"); Moore v. Douglas, 09-452-ML, 2010 WL 4323012 (D.R.I. Oct. 5, 2010) (defendants' statement of disputed facts was deficient because it did not identify the evidence establishing the dispute), report and recommendation adopted, 2010WL 4455817 (D.R.I. Oct. 29, 2010). With these procedural deficiencies in mind, the Court turns to outlining the undisputed facts.

III. Factual Background

Plaintiff arrived at Brown as a freshman in the Fall of 2003. During the Spring of 2005, Plaintiff's "grades start[ed] to slip." Defendant's Exhibit B, Plaintiff's Deposition ("Plaintiff's Deposition") at 63. Plaintiff met with Carla Hansen ("Hansen"), the Associate Dean of Student Life, because he needed approval from an administrator to receive academic extensions. Plaintiff also met with Hansen because he was experiencing side effects from medication he had been prescribed and he had been informed that Hansen was a social worker who had a psychotherapy practice and "lots of training" dealing with "medical issues." Id. At the time, in addition to her duties at Brown, Hansen was also a licensed social worker.

Plaintiff inquired about the confidentiality of their meeting. Hansen informed Plaintiff that Brown's confidentiality "standards were . . . more inclusive than the narrow limits of psychotherapy . . . and that there were actually a number of things that [Hansen] could be obligated to address" as a result of the meeting. Plaintiff's Statement of Disputed Facts at ¶ 8. During the meeting, Plaintiff asked Hansen, "I know what it is like when I am kissing my girlfriend, and I feel my chest against her breasts, but what does it feel like for you with your girlfriend?" Defendants' Statement of Undisputed Facts at ¶ 9. After the meeting, Hansen completed a campus complaint form ("Hansen Complaint") reporting that Plaintiff had behaved in an unusual manner and made inappropriate comments.

In a letter dated June 17, 2005, Terry Addison ("Addison"), the Associate Dean of Student Life, advised Plaintiff that Addison had "received a [c]ampus [c]omplaint and severalreports of [Plaintiff] making inappropriate, sexually harassing comments. . . ." Defendants' Exhibit H. Addison requested that Plaintiff contact him to schedule a Dean's Hearing at which the incidents would be discussed and Addison would determine whether Plaintiff had violated Offense IV under the Brown Standards of Student Conduct.² By the time Plaintiff received Addison's letter, however, he had left campus for the summer. Plaintiff was advised to schedule the hearing when he returned to Brown in the Fall of 2005.

Plaintiff, however, did not return to Brown until the Fall of 2007. Within weeks of Plaintiff's return to campus, new complaints were lodged against him. A letter from Addison, dated September 12, 2007, informed Plaintiff that a complaint had been filed against him.³ Addison informed Plaintiff that Brown had received a "complaint . . . that alleges you were in violation of the . . . Code of Student Conduct by allegedly threatening to stab another Brown student." Defendants' Exhibit Q at 1. The letter advised Plaintiff that if the allegation were true, it would constitute a violation of Offense II.b⁴ and Offense IV of the Standards of Student Conduct. The letter also advised Plaintiff that the new charges were in addition to the 2005 charge. Addison informed Plaintiff that Associate Vice President for Campus Life/Dean for Student Life, Margaret Klawunn ("Klawunn") had determined that an investigation into the 2007complaint would be conducted. Plaintiff was advised that it was his responsibility to provide the names of any individuals who may have information concerning the complaint; that he had a right to a Brown advisor who was not an attorney; and that he had a right to submit a written statement. The letter informed Plaintiff that his statement and any other information collected during the investigation would be provided to Klawunn for her use in determining whether there was a reasonable basis to file disciplinary charges against Plaintiff. The letter also advised Plaintiff that if the matter was referred to a hearing, a hearing officer would determine whether or not Plaintiff had violated the Standards of Student Conduct.

Plaintiff received another letter, also dated September 12, 2007, from Klawunn. That letter informed Plaintiff:

In accordance with the Non-Academic Disciplinary Procedures of Brown University and my authority to separate a student from the University on an emergency basis to protect the well-being of students and the University community, this letter is to inform you that effective immediately, September 12, 2007, you are removed and barred from the Brown University campus on an interim basis.

Defendants' Statement of Undisputed Facts at ¶ 26.

On September 12, 2007, Plaintiff met with several Brown administrators who informed him that he would...