304 F.Supp.2d 117 (2004) | Cited 24 times | D. Maine | February 23, 2004


I. Statement of Facts.

The Plaintiffs, Stefan Gomes and Paris Minor, formerly students at theUniversity of Maine, have filed a cause of action against the Universityof Maine System, the Trustees of the University of Maine System, and fiveindividuals, Peter S. Hoff, Elizabeth J. Allan, David Fiacco, RobertDana, and Robert Whelan, individually and in their respective officialcapacities at the University of Maine. The University subjected thePlaintiffs to discipline for allegedly committing a sexual assault onJune 10, 2003. The Complaint contains ten counts, alleging the Defendantscommitted a number of constitutional, contractual, and tort violations indisciplining the Plaintiffs. The University has moved to dismiss theComplaint.

II. Legal Standard.

A motion to dismiss pursuant to Rule 12(b)(6) tests the legalsufficiency of the complaint. Beegan v. Assoc. Press,43 F. Supp.2d 70, 73 (D. Me. 1999). As the First Circuit noted, "in theprecincts patrolled by Rule 12(b)(6), the demands on the pleader areminimal." Gooley v. Mobil Oil Corp., 851 F.2d 513, 514 (1st Cir.1988). The Court is required to: accept the well-pleaded factual averments of the . . . complaint as true, and construe these facts in the light most flattering to the [plaintiffs] cause . . . exempt[ing] of course, those `facts' which have since been conclusively contradicted by [plaintiffs] concessions or otherwise, and likewise eschew[ing] any reliance on bald assertions, unsupportable conclusions, and `opprobrious epithets.'Id. (quoting Chongris v. Board of Appeals,811 F.2d 36, 37 (1st Cir.), cert. denied, 483 U.S. 1021 (1987)). Thecourt grants relief only if the pleading shows "no set of facts whichcould entitle the plaintiff to relief." Id. Nevertheless, theminimal requirements of Rule 12(b)(6) are "not tantamount to nonexistentrequirements." Id. It remains the plaintiff's obligation to takethe steps necessary to "bring his case safely into the next phase of thelitigation." Id.Page 3

III. Discussion

A. Count I: Due Process.

Count I of the Complaint attempts to state a claim against allDefendants for a general denial of due process rights under the UnitedStates and Maine Constitutions. U.S. Const amend. VI; Me. Const art. I,§ 6-A. After Defendants moved to dismiss Count I, Plaintiffsresponded that Count I is "an adjunct to Plaintiffs' claim under42 U.S.C. § 1983 for federal violations, rather than as a directconstitutional tort claim for an independent remedy." PL'sReply Mem. at 2. They also withdrew their claims for separateviolations of the Maine constitution or the Maine Civil Rights Act.Id. at 2. Finally, they clarified that Count I was intended togive "notice of the factual allegations that underlie the § 1983claim" found in Count H. Id. at 2.

In light of Plaintiffs' response, this Court dismisses Count I, exceptto the extent it states facts not otherwise pled.1

B. Count II: 42 U.S.C. § 1983.

1. State Constitutional Claim.

Defendants seek to have Count II dismissed to the extent it alleges aviolation of state constitutional law under 42 U.S.C. § 1983.Def.'s Mem. at 5. Plaintiffs have responded by noting Count IIof the Complaint does not allege a state constitutional claim. PL'sReply Mem. at 2. Defendant argues that "[b]ecause no such allegationis made, Plaintiffs' state constitutionalPage 4claims in Count II must be dismissed." Def.'s Mem. at 5.To the contrary, because no allegation is made, no dismissal isnecessary.

2. Claims Under The 14th Amendment.

To explain the issues as the parties have framed them, the Court willreview the Complaint, the bases of the motion to dismiss, the Plaintiffs'responses, and the Defendants' counter-responses. Count II of theComplaint is directed against Defendants Allan, Fiacco, Hoff, Dana, andWhelan. It alleges each Defendant deprived the Plaintiffs of theirsubstantive and procedural due process rights acting under color of statelaw and demands declaratory relief and compensatory and other damages.Defendants first move to dismiss Count II to the extent it attempts tostate a claim against them in their "official capacity."

a. Official Capacity Claims.

To sustain a claim against an official in an official capacity, theremust be an allegation "that the entity followed a policy or custom" thatwas unconstitutional. Burrell v. Hampshire County, 307 F.3d 1, 7(1st Cir. 2002) ("A damages suit against an official in an officialcapacity is tantamount to a suit against the entity of which the officialis an agent . . . and there is no claim here that the entity followed apolicy or custom or deliberate indifference"); see Hafer v.Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham,473 U.S. 159, 165-66 (1985). An official-capacity claim under § 1983 requiresa showing that the government itself was a "moving force" behind thedeprivation. Graham, 473 U.S. at 166; Polk County v.Dodson, 454 U.S. 312, 326 (1981); Monell v. New York City Dep'tSoc. Serv., 436 U.S. 658, 694 (1978). To this end, an essentialelement of an official-capacity lawsuit is that the entity's policy orcustom must have played a part in the violation of federal law.Hafer, 502 U.S. at 25; Graham, 473 U.S. at 166;Monell, 436Page 5U.S. at 690; Burrell, 307 F.3d at 7. Defendants point tothe absence of any such allegation in Count II as fatal to the Plaintiffsclaim.

Plaintiffs respond by noting Count II demands injunctive relief againstDefendants Hoff, Dana, and Whelan, and monetary relief against allindividual Defendants. Because the § 1983 claim is directed againstneither the University of Maine as a state entity nor the individualDefendants in their official capacities, Burrell, they argue, isinapplicable. Pl's Reply Mem. at 4. To the extent the Plaintiffsseek monetary damages, it is against the individual Defendants in theirindividual capacities, not against the State.

In Will v. Michigan Department of State Police, the SupremeCourt held: Of course a state official in his or her official capacity, when sued for injunctive relief, would be a person under section 1983 because `official-capacity actions for prospective relief are not treated as actions against the State.'491 U.S. 58, 71 n.10 (1989); see Graham, 473 U.S. at 167 n.14;Ex Parte Young, 209 U.S. 123, 159-60 (1908). In O'Neill v.Baker, 210 F.3d 41, 47 (1st Cir. 2000), the First Circuit stated,"[a] plaintiff may, subject to a number of caveats, obtain injunctiverelief against state officials and also, if she sues the officials intheir individual capacities, recover monetary relief from them." Focusingon the limitation that a demand for injunctive relief against anindividual in his official capacity must be "for prospective relief,"Will, 491 U.S. at 71 n.10, the Defendants respond that eventhough a plaintiff may seek to enjoin government action through a §1983 claim, the remedy the Plaintiffs seek is "prospective in nature" and"not available to remedy past violations." Def.'s Mem. at 2. Inthe Court's view, taking the Plaintiffs' allegations as true, the requestfor injunctive relief to expunge the adverse actions from their academicrecords would meet applicable standards for the granting of injunctiverelief, since the University's record of discipline, though recorded inthe past, has an ongoing and prospective effect.Page 6

At oral argument, the University cited Rivera v. P.R. Aqueduct& Sewers Authority, 331 F.3d 183, 192 (1st Cir. 2003), for theproposition that unless the Plaintiffs allege governmental policy orcustom, the § 1983 Count fails to state a claim, even if the soleremedy sought is prospective injunctive relief. But the University takestoo much from Rivera. In Rivera, the First Circuitresponded to a demand the plaintiff had made against the governmentalentities themselves for declaratory and injunctive relief, seeking anorder mandating a job reinstatement and/or transfer. Affirming thedistrict court, the First Circuit held that the daims against thegovernmental entities must fail because there was no evidence of anypolicy or custom that would warrant municipal liability. Rivera,331 F.3d at 192.

Here, the Plaintiffs are requesting injunctive relief, not from theUniversity itself, but from University officials. The First Circuitexplored this distinction in Dirrane v. Brookline PoliceDepartment, 315 F.3d 65, 71-72 (1st Cir. 2002). While acknowledgingthe Supreme Court's "seemingly inconsistent locutions" on this narrowissue, the First Circuit pointed out that the Supreme Court "hasrepeatedly said that an official who acts unconstitutionally can beenjoined even though the state is immune from damages." 315 F.3d at 71(citing Ex Parte Young, 209 U.S. 123).

If the Plaintiffs are able to sustain their claim that the University'sdisciplinary action violated their constitutional rights, they would beentitled to demand, and this Court would have the authority to order,University officials expunge the unconstitutional disciplinary actionfrom the Plaintiffs' University records. Further, the Plaintiffs' claimfor this limited injunctive relief does not implicate the EleventhAmendment concerns the Supreme Court discussed in Edelman v.Jordan, 415 U.S. 651, 664-65 (1974). The Defendants' Motion toDismiss the official capacity claims in Count II is denied.Page 7

b. Individual Capacity Claims.

Count II of the Complaint also attempts to state a claim againstDefendants (other than the University) in their individual capacities forasserted violations of substantive and procedural due process. Theindividual Defendants have posited the affirmative defense of qualifiedimmunity. Recognizing that litigation is costly, even though a claim ofqualified immunity is an affirmative defense, the issue may be raised ina motion to dismiss before the commencement of discovery. Mitchell v.Forsyth, 472 U.S. 511, 526 (1985); Guzman-Rivera v.Rivera-Cruz, 98 F.3d 664, 667 (1st Cir. 1996).

Individual defendants are entitled to qualified immunity for officialaction unless: (1) their conduct violated the Plaintiffs' constitutionalrights; and (2) the law to this effect was clearly established underthen-existing law so that a reasonable official would have known that hisbehavior was unlawful. Dwan v. City of Boston, 329 F.3d 275, 278(1st Cir. 2003). Here, the Defendants' Motion to Dismiss asserts thatneither the substantive nor procedural due process claims meet the highstandard set forth in Dwan. The Court will address thesubstantive and procedural due process claims separately.

1. Substantive Due Process.

The Fourteenth Amendment provides that "no state shall . . . depriveany person of life, liberty, or property, without due process oflaw . . . . " U.S. Const. amend. XIV, § 1. Unlike its proceduralsibling, substantive due process "imposes limits on what a state may doregardless of what procedural protection is provided." Pittsley v.Warish, 927 F.2d 3, 6 (1st Cir.), cert. denied,502 U.S. 879 (1991); see also Grendell v. Gillway, 974 F. Supp. 46, 50(D. Me. 1997). However, as then-Chief Judge Bryer stated for the FirstCircuit in Newman v. Burgin, "thePage 8primary concern of the due process clause is procedure,not the substantive merits of a decision." 930 F.2d 955, 961-62 (1st Cir.1991).

The Supreme Court has enunciated alternative tests by which substantivedue process claims are to be examined. Under the first test, it is notrequired that the plaintiffs prove a violation of a specific liberty orproperty interest; however, the state's conduct must be such that it"shocks the conscience." Rochin v. California, 342 U.S. 165,172-73 (1952); Pittsley, 927 F.3d at 6. The First Circuit hasfound conduct shocking the conscience where state actors engage inextreme or intrusive physical conduct. E.g., Souza v. Pina,53 F.3d 423, 427 (1st Cir. 1995); Harrington v. Almy, 977 F.2d 37,43-44 (1st Cir. 1992) (reasonable fact-finder could find "conscienceshocking" conduct where police officer, who was dismissed on charges ofchild abuse, was required to take penile plethysmograph as condition ofreinstatement); see also Hinkley v. Baker, 122 F. Supp.2d 48,52-53 (D. Me. 2000) (discussing "shocks the conscience" standard inteacher sexual abuse cases).

To succeed under the second test, a plaintiff must demonstrate aviolation of an identified liberty or property interest protected by thedue process clause. Pittsley, 927 F.2d at 6. AsPittsley explained, such a violation may occur in a number ofcontexts. 927 F.2d at 6 (citing Revere v. Massachusetts Gen.Hosp., 463 U.S. 239, 244 (1983) (state provision of medical care topersons with serious medical needs while in state custody); Youngbergv. Romero, 457 U.S. 307, 315 (1982) (individual committed to stateinstitution has protected liberty interest in receiving safe livingconditions and freedom from unreasonable bodily restraints); Ingrahamv. Wright, 430 U.S. 651, 673 (1977) (corporal punishment of studentinflicted by public school teacher violates substantive due process);Landrigan v. Warwick, F.2d 736, 741-42 (1st Cir.Page 91980) (substantive due process implicated where policeman usesexcessive force in apprehension of suspect)).

Both of the alternative tests have been applied to the school setting."Conscience shocking" behavior in the education context has usuallyinvolved physical or sexual abuse or excessive punishment. See, e.g.,Neal v. Fulton County Bd. of Educ., 229 F.3d 1069, 1077 (11th Cir.2000) (examining coach's action of hitting football player with metallock, knocking out player's eye); Armiho v. Wagon Mound Pub.Schs., 159 F.3d 1253, 1262 (10th Cir. 1998) (reviewing schoolofficials' actions in suspending special education student and sendinghim home alone, even though officials knew he had threatened suicide andhad access to firearms); Doe v. Taylor Indep. Sch. Dist.,15 F.3d 443, 451 (5th Cir. 1994) (considering sexual abuse of student byteacher); but see Abeyta v. Chama Valley Indep. Sch. Dist.,77 F.3d 1253, 1258 (10th Cir. 1996) (holding no substantive due processviolation when teacher repeatedly called female student "prostitute" andencouraged other students to harass her).

Taking the factual allegations in Counts I and II together, theComplaint alleges the Plaintiffs' due process rights were violatedbecause: (1) they were subjected to discipline for alleged conduct "notwithin the jurisdiction" of the Student Conduct Code (Student Code),Complaint at 2; (2) the Defendants conducted a "fundamentallyunfair hearing, which included depriving the Plaintiffs of critical andpotentially exculpatory evidence gathered during the investigation,depriving the Plaintiffs of effective assistance of counsel, preventingthe Plaintiffs from effectively cross-examining and confronting adversewitnesses, depriving the Plaintiffs of any effective administrativeappeal, depriving the Plaintiffs of an impartial tribunal, and imposingsevere punishment without substantial evidence," Complaint at 6;and (3) thePage 10investigation, hearing, and appeal were "conducted in bad faith andsanctions were imposed in bad faith," Id.

The allegation that most clearly states a substantive due process claimis the Plaintiffs' allusion to the severity of their punishment, a claimthat requires the court to weigh "the severity of the punitiveeffect . . . against the severity of the conduct which occasioned thesuspension." Board of Educ. of Rogers, Ark. v. McCluskey,458 U.S. 966, 969 (1982) (citing Wood v. Strickland, 420 U.S. 308,326 (1975); Mitchell v. Board of Trustees, 625 F.2d 660, 664n.8 (5th Cir. 1980); Demers v. Leominster Sch. Dep't,263 F. Supp.2d 195, 206 (D. Mass. 2003)). In reviewing the Plaintiffs'allegation, however, this Court is mindful that the Supreme Court haswarned against "judicial interposition in the operation of the publicschool system of the Nation" Epperson v. Arkansas, 393 U.S. 97,104 (1968); Goss v. Lopez, 419 U.S. 565, 577 (1975); seealso Dunn v. Fairfield Cmty. High Sch. Dist. No. 225, 158 F.3d 962,966 (7th Cir. 1988) ("[W]e share the district court's concern abouttransforming the federal courts into an appellate arm of the schoolsthroughout the country. . . . "). In Brewer v. Austin IndependentSchool District, Judge Higginbotham wrote: "Review and revision ofa school suspension on substantive due process grounds would only beavailable in a rare case where there was no `rational relationshipbetween the punishment and the offense.'" 799 F.2d 260, 264 (5thCir. 1985), accord Rosa R. v. Connelly, 889 F.2d 435, 439(2nd. Cir. 1989).

Applying these principles to the instant case, the Plaintiffs'allegations do not "shock the conscience." The University determined thePlaintiffs engaged in sexual abuse of a fellow student and suspended themfrom the University; the Plaintiffs lost scholarship funds andopportunities as student athletes, and suffered other consequentialdamages. There is no allegation, however, that either the University orits officers were "physically intrusive orPage 11violent" or that the actions struck at the basic fabric of anyprotected relationship (such as a parent-child relationship). SeeCruz-Erazo v. Rivera-Montanez, 212 F.3d 617, 623 (1st Cir. 2000).Far from "shocking the conscience," the University's decision to suspendthe Plaintiffs, once it determined they had sexually abused a fellowstudent, was well within the substantive due process protections of theFourteenth Amendment. When the Plaintiffs' allegation ofunconstitutionally severe punishment is measured against theDwan criteria, the Complaint simply fails to state a substantivedue process claim upon which relief can be granted.

At oral argument, the Plaintiffs claimed their substantive due processrights had been violated, since they had been deprived of a recognizedconstitutionally recognized property interest — that is, the rightto a higher education. The Plaintiffs cited Graffam v. Town ofHarpswell, 250 F. Supp.2d 1 (D. Me. 2003), for this proposition.Pursuit of an education is not a fundamental right or liberty forpurposes of substantive due process. San Antonio Indep. Sch. Dist. v.Rodriguez, 411 U.S. 1, 35 (1973) ("Education, of course, isnot among the rights afforded explicit protection under our FederalConstitution. Nor do we find any basis for saying it is implicitly soprotected"); Black v. Sullivan, 561 F. Supp. 1050, 1058(D. Me. 1991) ("A state-subsidized, post-secondary education is not afundamental constitutional right").

To the extent property interests have been identified in the realm ofhigher education, they have "generally been assumed rather than found."Tobin v. University of Me. Sys., 59 F. Supp.2d 87, 90 (D. Me.1999); see, e.g., Regents of Univ. of Mich. v. Ewing,474 U.S. 214, 223 (1985) (assuming student enrolled in degreeprogram had property interest in continued enrollment); Board of Curatorsof Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-85 (1978)(assuming student had liberty interest in continued enrollment). Assumingthe Plaintiffs had a cognizable property or liberty interest in continuedenrollment at the University of Maine,Page 12Gorman v. University of Rhode Island, 837 F.2d 7, 11 (1stCir. 1988), they failed to articulate a viable basis upon which thisCourt can conclude that their substantive due process rights have beenviolated. The Complaint itself fails to allege factual allegations thatwould sustain such a conclusion, particularly under the high standards inDwan.

For the foregoing reasons, this Court grants the Defendants' Motion toDismiss the Plaintiffs' substantive due process claims.

2. Procedural Due Process.

a. Territorial Jurisdiction.

Turning to the procedural due process claims, the Plaintiffs allege theUniversity deprived them of their constitutional rights "by subjectingthem to a disciplinary proceeding for alleged conduct that was not withinthe jurisdiction set forth in the Student Conduct Code."Complaint at 29. The Defendants move to dismiss on the groundthat this allegation fails to state a claim upon which relief can begranted.

To the extent the Plaintiffs are arguing that even if they committed asexual assault, the University would be without jurisdiction todiscipline them because the assault took place off-campus, the Courtrejects this argument.2 The University's legitimate interest inpunishing the student perpetrator of a sexual assault or protecting thestudent victim does not end at the territorial limits of its campus.See Slaughter v. Brigham Young Univ., 514 F.2d 622 (10th Cir.),cert. denied, 423 U.S. 898 (1975) (discipline upheld againstgraduate student who published material without proper attribution formost part prior to enrollment as student); Due v. FloridaPage 13Agric. & Mech. Univ., 233 F. Supp. 396 (N.D. Fla.1963) (contempt of court conviction as basis for university discipline);Krasnow v. Virginia Polytechnic Inst. & State Univ.,414 F. Supp. 55 (W.D. Va. 1976) (unlawful drug possession off campus can serveas basis for university discipline).

Furthermore, the Plaintiffs' construction of the Student Code isstrained at best.3 The Plaintiffs point to the language in the"Jurisdiction" section that reads: The University of Maine System Student Conduct Code . . . shall apply to the following: 1. Any person . . . who is on the University real property or University-related real property.From this language, the Plaintiffs argue that the Code is intended tobe applied to students only when they are physically present onUniversity or University-related real property. However, this snippet istaken badly out of context. The full sentence reads as follows: The University of Maine System Student Conduct Code . . . shall apply to the following: 1. Any person(s) registered or enrolled in any course or program offered by the University or any person admitted to the University who is on the University real property or University-related real property for any purpose related to registration or enrollment at the time of the alleged offense.

The full context clarifies that the Student Code applies to registeredor enrolled students without limitation and the territorial limitationapplies only to admitted students who are at the University to registeror enroll.Page 14

Moreover, while subpart B of the Student Code explains thatjurisdiction applies to events occurring on campus, it also provides thatjurisdiction extends to conduct "in which the University can demonstratea clear and distinct interest as an academic institution regardless ofwhere the conduct occurs and which seriously threatens . . . the healthor safety of any member of the academic community." The Plaintiffs'argument that the wording of the "Jurisdiction" section of the StudentCode prevents the University from disciplining a student for a sexualassault against another student when the assault occurred off-campus runsafoul of the express language of the Student Code and is simplyfrivolous.

In their memorandum, the Plaintiffs seek to explain their claim bystating that the "University's actual practices regarding disciplinaryactions on allegations of off-campus activity between individual studentswill shed some light on the first, second and fourth parts of theimmunity inquiry" and must await "factual development." Pl.'s ReplyMem. at 13. The Plaintiffs appear to be arguing that when eventspotentially subject to discipline take place off-campus, the Universityhas been selective in its enforcement of the Student Code. But thisallegation does not appear in the Complaint. See Gooley, 851F.2d at 515 n.2 ("[R]epresentations in a brief are an impuissantsurrogate for a record showing") (quoting United States v.Kobrosky, 711 F.2d 449, 457 (1st Cir. 1983)). Instead, the Complaintalleges the University was without jurisdiction, not that the Universityapplied its jurisdiction in an arbitrary or discriminatory manner.4Complaint at 29. The Court grants the Defendants' Motion toDismiss insofar as it alleges a claim that the University was withoutterritorial jurisdiction over their conduct because it occurredoff-campus.Page 15

B. Conduct of the Hearing.

The next issue is whether the Plaintiffs' allegations that theUniversity violated their procedural due process rights in its conduct ofthe hearing are sufficient to survive Defendants' Motion to Dismiss. ThePlaintiffs are entitled to the protections of due process, since theywere facing expulsion or suspension from a public educational institutionand their interest in pursuing an education is included within theFourteenth Amendment's protection of liberty and property.Gorman, 837 F.2d at 12 ("[A] student facing expulsion orsuspension from a public educational institution is entitled to theprotections of due process").

This statement is "only the beginning of the inquiry," since dueprocess is "not a fixed or rigid concept, but, rather, is a flexiblestandard which varies depending upon the nature of the interest affected,and the circumstances of the deprivation." Gorman, 837 F.2d at12. At a minimum, students facing disciplinary action, such as asuspension, must be given "some kind of notice and afforded some kind ofhearing." Goss v. Lopez, 419 U.S. at 574-75. Judge Gignoux ofthis Court adopted Professor Wright's description of the minimumrequirements of due process in an academic setting: (1) the student must be advised of the charges against him; (2) he must be informed of the nature of the evidence against him; (3) he must be given an opportunity to be heard in his own defense; and, (4) he must not be punished except on the basis of substantial evidence.Keene v. Rodgers, 316 F. Supp. 217, 221 (D.Me. 1970) (quotingWright, The Constitution on the Campus, 22 Vand. L. Rev. 1027,1071-72 (1969)). To these factors, Keene added the additionalrequirements that the student must be permitted the assistance of alawyer, at least in major disciplinary proceedings; permitted to confrontand to cross-examine the witnesses against him; and afforded the right toan impartial tribunal, which shall make written findings. Id. at221Page 16(citations omitted); see Carey, et al. v. M.S.A.D. No. 17, etal, 754 F. Supp. 906, 919 (D. Me. 1990).

The Defendants point to the following specific assertions in theComplaint that allegedly fail to state a claim: (1) the Defendants failedto provide the Plaintiffs with discovery of documents and witnesses; (2)the Defendants placed a physical partition between the Plaintiffs and thealleged victim; and (3) Defendant Fiacco asked them if they would waivetheir due process rights.5

Regarding discovery, the Plaintiffs claim they were not provided with asummary of a statement the victim gave to the Old Town police; they werenot provided with a third-party statement that directly related to thealleged victim's credibility, though counsel for the alleged victim wasprovided the statement; and they were not provided with a witness orexhibit list before the day of the hearing.

The Defendants are correct that due process in the context of academicdiscipline does not necessarily require students be given a list ofwitnesses and exhibits prior to the hearing, provided that the studentsare allowed to attend the hearing itself. Nash v. Auburn Univ.,812 F.2d 655, 662-63 (11th Cir. 1987) ("[W]e did not require inDixon that students facing a hearing on charges of misconduct begiven the names of witnesses against them and a summary of their expectedtestimony, when the opposing witnesses will testify in the presence ofthe accused"). The failure to provide potentially exculpatory evidencefits in the same category. "Discoverable evidence" and "witness lists"have the distinct ring of the Federal Rules of Civil Procedure and courtshave warned against requiring a university to act as a judicial body.See Dixon v. Alabama State Bd. of Educ., 294 F.2d 150, 159 (5thCir.), cert. denied, 368 U.S. 930 (1961)Page 17("This is not to imply that a full-dress judicial hearing, with theright to cross-examine witnesses, is required"); Gorman, 837F.2d at 26 ("[T]he courts ought not to extol form over substance, andimpose on educational institutions all the procedural requirements of acommon law criminal trial").

On the other hand, whether the hearing was fair "depends upon thenature of the interest affected and all of the circumstances of theparticular case." Gorman, 837 F.2d at 13. The University'scharge of misconduct, based on an allegation of sexual assault against afellow student, had serious repercussions for the Plaintiffs. At thisstage, it is unclear who was called to testify, other than the allegedvictim; what testimony was given; the significance of such testimony; andwhether the Plaintiffs should have anticipated the evidence. Reviewingthe allegations in a light most favorable to the Plaintiffs at this stagein the proceeding, the Court denies the motion to dismiss on the failureto supply evidence and the names of witnesses before the day of thehearing.

In their Complaint, the Plaintiffs have alleged that "during thehearing, the Defendants placed a physical partition between thePlaintiffs and the alleged victim so that neither the Plaintiffs northeir attorney could observe the conduct, demeanor, or testimony ofwitnesses and others." Complaint at 5. The Defendants have citedCloud v. Trustees of Boston University, 720 F.2d 721 (1st Cir.1983), for the proposition that "a physical partition placed betweenPlaintiffs and the victim do not state a claim." Def.'s Mem. at10. If the allegation were only that the alleged victim was separatedfrom the Plaintiffs by a screen, Cloud would control and theComplaint would not state a claim on this issue.

However, in Cloud, the First Circuit noted, "Cloud was giventhe opportunity to cross-examine the witness, and his attorney and theJudicial Committee were permitted to view thePage 18witness." 720 F.2d at 725. Here, the Plaintiffs have alleged thattheir attorney was prohibited from observing the alleged victim and"witnesses and others." It is difficult to envision what is beingalleged. The Plaintiffs seem to be claiming not that the partitionseparated the alleged victim from them, but that the partition separatedthem and their attorneys from the rest of the hearing room.6Under Cloud, it is possible that erecting a screen walling-offthe Plaintiffs and their attorney from the rest of the hearing room mightwithstand constitutional challenge. But the image of the Plaintiffs'attorney attempting to conduct an effective cross-examination whilesitting in a small, screened-in area with his clients, unable to see thewitness and the hearing officers, all the while throwing his voice overthe screen, makes this Court reluctant to dismiss this part of thePlaintiffs' claim without some factual development to measure their claimagainst applicable law.7 See, e.g., Keene, 316 F. Supp. at221 ("[T]he student must be permitted to confront and to cross-examinethe witnesses against him").

Regarding Count II's assertions of procedural due process violations,his Court grants the Motion to Dismiss insofar as the Complaint alleges aterritorial limitation to University jurisdiction; it denies the motionto dismiss the procedural due process claims on the conduct of thehearing.

C. Count III: Breach of Contract.

In Count III, the Plaintiffs allege the University has "a contract witheach of its students" and that "[b]y engaging in the disciplinaryproceeding at issue in this case, and by conducting itPage 19in a manner that contravened the Student Conduct Code and deprivedthe Plaintiffs of their federal and state constitutional rights," theUniversity breached the contract. Complaint at 35. TheDefendants move to dismiss Count III on the ground that it fails to statea claim against the System Trustees and that, other than generallyalleging a breach of contract, the Plaintiffs have failed to specify theterms of the contract or how the contract was breached.

The Defendants do not dispute that a contract exists between theUniversity and its students, a point of law well-settled in the FirstCircuit and Maine. E.g., Mangla v. Brown Univ., 135 F.3d 80, 83(1st. Cir. 1998) ("The student-college relationship is essentiallycontractual in nature"); Goodman v. President and Trustees of BowdoinColl., 135 F. Supp.2d 40, 55 (D. Me.) ("[B]y pleading his status asa student at Bowdoin College at the time of the incident . . . Plaintiffhas adequately pleaded the existence of a contractual relationshipbetween Bowdoin and himself); Tobin v. Univ. of Me. Sys.,59 F. Supp.2d 87, 95 (D. Me. 1999) ("Defendants acknowledge that contractsmay be formed between students and universities"). Instead, theDefendants focus on the lack of specificity in the allegations of theComplaint.

Regarding Defendants' claim that the Trustees should be dismissed sincethere was no allegation directly against them, the Student Code expresslystates that it was "accepted by the Board of Trustees" and thatamendments to it require action by the Board of Trustees. Pl's ReplyMem. at Ex. A. The imprimatur of the Board of Trustees issufficiently implicated to withstand a motion to dismiss.

The Student Code states that the University's administrative procedureswill afford "fundamental fairness." Id. ("[T]he University'sadministrative process affords fundamental fairness. . . . "); seeGoodman, 135 F. Supp.2d at 57 ("Bowdoin College acknowledges itsresponsibility to conduct judicial proceedings which reflect fundamentalfairness"). In theirPage 20Complaint, the Plaintiffs have raised numerous questions as towhether the University's proceedings complied with its contractualpromise of fundamental fairness. As in Goodman, this Courtdeclines to dismiss these claims for failure to state a claim.135 F. Supp.2d at 51.

D. Count IV: Breach of Duty of Good Faith and Fair Dealing.

In Count IV, the Plaintiffs allege that Student Code creates acontractual duty of good faith and fair dealing, which the Defendantsbreached. The Defendants move to dismiss this Count on the ground thatMaine law does not recognize an implied duty of good faith and fairdealing. Caldwell v. Federal Express Corp., 908 F. Supp. 29, 36(D. Me. 1995); Renaissance Yacht Co. v. Stenbeck, 818 F. Supp. 407,412 (D. Me. 1993); People's Heritage Sav. Bank v. Recoll Mgmt.,Inc., 814 F. Supp. 159, 168-69 (D. Me. 1993). The Plaintiffs respondthat they are not claiming an implied duty of good faith and fairdealing; instead, they are claiming the language of the Student Codeimposes a separate contractual obligation.

Both parties are correct. To the extent Count IV states a claim for abreach of an implied duty of fairness and fair dealing, the Plaintiffs donot state a claim cognizable under Maine law. To the extent Count IVstates a claim for a breach of an express duty of fairness and fairdealing, the claim is subsumed under Count III. For these reasons, theCourt dismisses Count IV.

E. Counts V, VI, VIII and IX: Maine Tort Claims ActImmunity.

Defendants seek dismissal of Counts V, VI, VIII, and IX on the groundthey "sound in tort" and the Defendants are immune under the provisionsof the Maine Tort Claims Act. Def.'s Mem. at 13. Count V of theComplaint alleges Defendants University of Maine System, its Trustees,and individual Defendants Hoff and Dana engaged in negligent hiring andsupervision; Count VI alleges negligence against all defendants; CountVII alleges defamation against all defendants; Count VIII allegesnegligent and/or intentional infliction of emotional distressPage 21against all defendants; and, Count IX alleges negligentmisrepresentation against the University, its Trustees, and individualDefendants Fiacco and Dana.

1. University of Maine Systems: Liability InsuranceCoverage.

Defendant University of Maine System moves to dismiss the Plaintiffs'tort claims on the ground it is immune from suit under the Maine TortClaims Act, 14 M.R.S.A. § 8104-B. Plaintiffs note, however, anexemption to this immunity under 14 M.R.S.A. § 8116, which providesthat if a governmental entity maintains insurance, it "shall be liable inthose substantive areas but only to the limits of the insurancecoverage." As qualified immunity is an affirmative defense and as thereis no evidence of an absence of coverage, the Plaintiffs properly arguethat the Complaint as against the University is not subject to aRule 12(b)(6) dismissal. See Napier v. Town of Windham, 187 F.3d 177,190 (1st Cir. 1999); King v. Town of Monmouth, 1997 ME 151,697 A.2d 837, 840 (Me. 1997). The Motion to Dismiss Counts V, VI, VIII and IXas against the University of Maine System is denied.

2. Individual Defendants: Liability Insurance Coverage.

Defendant next moves to dismiss the individual defendants on the groundthat they are immune from suit. Plaintiffs again point to 14 M.R.S.A.§ 8116. Both parties rely upon different decisions of the MaineSupreme Judicial Court as authority for different propositions. TheDefendants cite Moore v. City of Lewiston for its conclusion§ 8116 did not waive city employees' personal immunity even if thecity purchased liability insurance for them:

Section 8116 provides that a governmental entity `may purchase insurance . . . on behalf of its employees to insure them against any personal liability for which a government entity is obligated to provide defense or indemnity under § 8112.' However, unlike the parallel provision in § 8116 regarding government entities, which states that `the governmental entity shall be liable . . . to the limits of the insurance coverage' (emphasis added), this provision does not purport to waive the personal immunity of insured employees.Page 22 Thus, regardless of whether the City's insurance coverage extended to the defense or indemnity of the police officers, their personal immunity from liability could not have been waived.

596 A.2d 612, 615-16 (Me. 1991); see Napier, 187 F.3d at190.

The Plaintiffs respond with the Law Court's analysis in Rippett v.Bemis: Because McAlevey is exposed to liability for defamation committed during the course of his work for the York County Sheriffs Department, Sheriff Bemis potentially is liable vicariously as McAlevey's "master" under the doctrine of respondeat superior. The Maine Tort Claims Act in general provides immunity from liability for government officials acting in their discretionary function of properly supervising employees who are performing discretionary functions. A government official, however, waives such Maine Tort Claims Act immunity to the extent he enjoys the protection of liability insurance for his discretionary functions. The York County Sheriffs Department carried comprehensive law enforcement liability insurance during the time the Sheriff supervised Detective McAlevey's investigation and when McAlevey made the statements concerning Loa Rippett. Sheriff Bemis thus waives his immunity from vicarious liability for his supervisory functions to the extent of the policy's coverage. To the extent of that insurance the Maine Tort Claims Act does not shield the Sheriff from vicarious liability under the doctrine of respondeat superior for a tortuous act committed by Detective McAlevey within the scope of his employment under the Sheriffs supervision.672 A.2d 82, 88-89 (Me. 1996).

This Court acknowledges, as Judge Hornby did in Napier, thereis "some ambiguity" between Moore and Rippett. Napier,187 F.3d at 191. Nevertheless, for the reasons set for inNapier, this Court concurs with Judge Hornby's analysis that§ 8116 applied only to the Sheriffs Department, not the sheriffsemployee immunity.8 Further, the Law Court decided Grossmanv.Page 23Richards, 722 A.2d 371 (Me. 1999), after bothMoore and Rippett, and in Grossman, the LawCourt cited Moore and unequivocally reiterated its holding:"Section 8116 only affects the liability of governmental entities, anddoes not waive the immunity of the individual insured employees." 722A.2d at 376. This Court concludes that the existence or absence ofUniversity-purchased liability insurance for the individual namedDefendants does not constitute waiver of their immunity under the MaineTort Claims Act.

3. Specific Tort Claims.

In their Motion to Dismiss, Defendants assert two of the tort countsare subject to dismissal on separate theories. Specifically, they claimthat Maine has not adopted the torts of negligent hiring or negligentsupervision, which form the bases of Count V, and that the Plaintiffshave not stated a claim for negligent misrepresentation in Count IX uponwhich relief can be granted.

a. Count V: Negligent Hiring and Negligent Supervision.

The Defendants correctly note that Maine has not recognized theindependent tort of negligent supervision of an employee. E.g.,Santoni v. Potter, 222 F. Supp.2d 14, 28 (D. Me. 2002); Mahar v.Stonewood Trans., 823 A.2d 540 (Me. 2003); Napieralski v. UnityChurch of Greater Portland, 802 A.2d 391 (Me. 2003); Hinkley v.Penobscot Valley Hosp., 794 A.2d 643, 647 (Me. 2002); Swanson v.Roman Catholic Bishop of Portland, 692 A.2d 441, 443-44 (Me. 1997).It is true that the Law Court has avoided holding that the tort does ordoes not exist. E.g., Mahar, 823 A.2d at 543 ("Even if we wereto adopt negligent supervision as an independent tort . . . the facts ofthis case do not support such a cause of action"); Napieralski,802 A.2d at 393 ("Even if we were disposed to recognize a cause of actionfor negligent supervision, it would be problematic at best to undertakerecognition of that tort in this case"); Hinkley, 794 A.2d at647Page 24("Although we have never before recognized the independent tort ofnegligent supervision, Hinkley urges us to do so now. . . .[W]e need notaddress that issue"). The best the Plaintiffs can say is the Law Courthas implied it will rule on whether the tort exists if the proper set offacts comes before it.

In addressing the same question, Magistrate Judge Cohen expressed aview with which this Court agrees: "The Maine Law Court has neverrecognized the tort of negligent supervision, (citations omitted). TheCourt is loathe to recognize a new state tort in advance of the state'shighest court. . . . " Santoni, 222 F. Supp.2d at 28; seealso Forum Fin. Group v. Pres. and Fellows of Harvard Coll., 2002 WL31175454 at 1, *16 (D. Me. 2002). Because Maine has not recognized thetort of negligent supervision of an employee, this Court grants theDefendants' Motion to Dismiss on this cause of action.

The tort of negligent hiring, although similar to negligentsupervision, is a separate tort. Unlike negligent supervision, the MaineSupreme Judicial Court has recognized the tort of negligent hiring;however, it has limited its application to a narrow context: negligentselection of a contractor. In Dexter v. Town of Norway,715 A.2d 169, 172 (Me. 1998), the Law Court adopted as the law of MaineRestatement (Second) of Torts § 411, which provides: An employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor (a) to do work which will involve a risk of physical harm unless it is skillfully and carefully done, or (b) to perform any duty which the employer owes to third persons.In doing so, however, the Law Court circumscribed its holding, statingthat "[w]e are far less certain whether and under what circumstances wewould recognize the doctrine variously described as involving `a peculiarunreasonable risk' (§ 413), `a peculiar risk' (§ 416) or `aspecial risk' (§ 427)." 715 A.2d at 172.Page 25

Restatement (Second) of Torts § 411 does not provide a basisfor the tort of negligent hiring of an employee; instead, Restatement(Second) of Torts § 3079 and Restatement (Second) of Agency §213(b)10 provide authority for jurisdictions that have adopted thetort. See, e.g., Quinonez v. Andersen, 696 P.2d 1342 (Ariz.1984). The Law Court's limited adoption of the tort of negligentselection of a contractor under Restatement (Second) of Torts § 411does not, in this Court's view, extend to the wholesale adoption of thetort of negligent hiring, especially in view of the Law Court's cautiousapproach to the tort of negligent supervision.11 But see Brennanv. Stone Coast Brewing Co., CV-01-555 (Cum. Cmty. Me. Super. Jan.21, 2003) (Crowley, J.) (stating, "negligent hiring . . . has beenrecognized by the Law Court," and citing Dexter v. Town ofNorway). Magistrate Judge Cohen's reluctance "to recognize a newstate tort in advance of the state's highest court" applies with equalforce to the unrecognized tort of negligent hiring. Sanonti,222 F. Supp.2d at 28.

Count V is dismissed for failure to state a claim under Maine tort lawupon which relief can be granted.Page 26

b. Count IX: Negligent Misrepresentation.

Count IX, alleging negligent misrepresentation, presents a differentissue. The Defendants do not contend that Count IX fails to state a claimunder Maine tort law; rather, they contend that the Plaintiffs'allegations are insufficient to state a claim under the Maine Tort ClaimsAct. Unlike the other counts, Count IX alleges the Defendants were"acting in the course of their employment" in supplying "falseinformation for the guidance of the Plaintiffs in their transactions asstudents and student athletes." Complaint at 47. The question,then, is whether this distinct allegation makes a legal difference.

Since it sounds in negligence, Count IX does not allege intentionalharm under MacKerron v. Madura, 474 A.2d 166, 167 (Me. 1984)(discussed below); however, the remaining allegations of Count IX do notfurther illuminate the factual grounds for the cause of action. At thisstage, the Court cannot assume the factual underpinnings of Count IXwould not sustain a ministerial function claim or a claim that theactions, though within the course of employment, fell outside theemployees' legal authorization. Accordingly, the Motion to Dismiss CountIX must be denied.

4. Discretionary Immunity: All Tort Claims.

The University next contends all remaining tort allegations in theComplaint against the individual Defendants are subject to dismissalbecause they run afoul of 14 M.R.S.A. § 8104-B(3), which providesimmunity for "performing or failing to perform any discretionary functionor duty." This immunity insulates from personal liability a governmentemployee who has been legislatively authorized to perform a discretionaryfunction and has acted or failed to act pursuant to that authorization.Darling v. Augusta Mental Health Inst., 535 A.2d 421, 425 (Me.1987); True v. Ladner, 513 A.2d 257, 260 (Me. 1986). The MaineSupreme Judicial Court has held thatPage 27discretionary function immunity does not apply to intentional harm,MacKerron, 474 A.2d at 167; functions that are ministerial, notdiscretionary, Kane v. Anderson, 509 A.2d 656, 656-57 (Me.1986), or conduct outside the scope of the actor's legal authorization,True, 513 A.2d at 260 ("[A]n employee of a governmental entityenjoys a personal immunity from civil liability for his performance of,or failure to perform, a discretionary function or duty only when a`statute, charter, ordinance, order, resolution, regulation or resolve'authorizes the performance of the discretionary function or duty and whenthe defendant has acted, or has failed to act, pursuant to thatauthorization").

In Darling, the Law Court established a four-prong test todetermine governmental immunity: (1) whether the act necessarily involvesa basic governmental policy, program or objective; (2) whether the act isessential to the realization or accomplishment of that policy, program,or objective as opposed to one which would not change the course ordirection of the policy, program, or objective; (3) whether the actrequires the exercise of basic policy evaluation, judgment, and expertiseon the part of the governmental entity involved; and (4) whether thegovernment possesses the requisite constitutional, statutory, or lawfulauthority and duty to do or make the challenged act. 535 A.2d at 426.

The Plaintiffs claim the actions of the individual Defendants exceededthe "scope of any discretion" they could have possessed in their officialcapacity. See Lyons v. City of Lewiston, 666 A.2d 95, 101 (Me.1995). They assert the individual Defendants exceeded their discretion inthe manner in which they conducted the disciplinary process and in thehiring and supervision of Defendant Fiacco.12Page 28

The factual allegations in the Complaint have the distinct ring of theexercise of discretion. The nature and scope of a University disciplinaryhearing, the conduct of the hearing itself, and the final judgment of theUniversity officials would appear to fit well within discretionaryfunction immunity under the Maine Tort Claims Act. Absent an allegationof intentional harm, investigating a student disciplinary complaint,conducting a disciplinary hearing, and issuing a decision would seem bythe nature of the activity not to be ministerial duties, to require theexercise of discretion, and to be within the scope of the official'slegal authorization.

Nevertheless, Courts that have ruled against a Plaintiffs' claim onthis basis have almost universally done so in the context of a motion forsummary judgment, not a motion to dismiss. See, e.g., Lightfoot v.School Admin. Dist. No. 35, 816 A.2d 63 (Me. 2003); Carroll v.City of Portland, 736 A.2d 279 (Me. 1999); Adriance v. Town ofStandish, 687 A.2d 238 (Me. 1996); Erskine v. Commissioner ofCorr., 682 A.2d 681 (Me. 1996); Preti, Flaherty, Beliveau &Pachios v. Ayotte, 606 A.2d 780 (Me. 1992); Poliey v.Atwell, 581 A.2d 410 (Me. 1990); Mueller v. Penobscot ValleyHospital, 538 A.2d 294 (Me. 1988). To sustain a motion to dismiss,the defendant must demonstrate that there is no set of facts which wouldentitle the plaintiff to relief. Gooley, 851 F.2d at 514. Basedon the high standard for dismissal, the Court denies the Defendants'Motion to Dismiss Counts VI, VII, and VIII of the Complaint.

In sum, regarding the Maine Tort Claims Act allegations, the Courtgrants Defendants' Motion to Dismiss Count V and denies Defendants'Motion to Dismiss Counts VI, VII, VIII, and Count IX of the Complaint.Page 29

F. Count X: Punitive Damages.

In Count X, the Plaintiffs allege that the Defendants' conduct was "sooutrageous that malice toward the Plaintiffs can be implied." TheUniversity moves to dismiss this Count on the assumption that the entireComplaint, except for the punitive damages count, has been dismissed. Ithas not. The law allows for the imposition of punitive damages withsignificant limitations. E.g., Smith v. Wade, 461 U.S. 30, 56(1983) ("[A] jury may be permitted to assess punitive damages in anaction under § 1983 when the defendant's conduct is shown to bemotivated by evil motive or intent, or when it involves reckless orcallous indifference to the federally protected rights of others");Dimarco-Zappa v. Cabanillas, F.3d 25, 37-38 (1st Cir. 2001);Rippett, 672 A.2d at 89 (Me. 1996) ("The Maine Tort Claims Actprovides no general protection from punitive damages for an employee heldpersonally liable"). The Court declines to dismiss the punitive damagescount at this stage in the proceedings.

IV. Conclusion

For the reasons set forth above, this Court GRANTS the Defendants'Motion to Dismiss Counts I, IV and V. Further, this Court GRANTS theDefendants' Motion to Dismiss Count II in part, but only insofar as itclaims any violation of substantive or procedural due process related toa territorial limitation of University jurisdiction. On all other Counts,this Court DENIES Defendants' Motion to Dismiss.


1. In the Court's view, the Plaintiffs have properly recognized thatwhere there is an adequate statutory remedy for the violation ofconstitutionally protected rights, a claim for direct relief under thefederal Constitution is unavailable. Carbon v. Green,446 U.S. 14, 18-23 (1980); Braintree Baptist Temple v. Holbrook Pub.Sch., 616 F. Supp. 81, 88 (D.Mass. 1984) (rev'd on differentgrounds by New Life Baptist Church Acad. v. East Longmeadow,885 F.2d 940 (1st Cir. 1989)); see also Ward v. Caulk,650 F.2d 1144, 1147 (9th Cir. 1981). Furthermore, the Plaintiffs' stateconstitutional claim would not be cognizable under 42 U.S.C. § 1983.Grenier v. Kennebec County, 748 F. Supp. 908, 913 (D. Me. 1990).To pursue a claim for a state constitutional violation, the Plaintiffsmust proceed under the Maine Civil Rights Act (MCRA), which requires theparty allege (which the Plaintiffs have not) intentional interference byphysical force or threat against a person or property. 5 M.R.S.A. §§4618-4865, 4682(1-A) (West 2003).

2. The Plaintiffs assert the sex was consensual; the Universityfound otherwise. Assuming arguendo that the Plaintiffs engagedin consensual sex, the territoriality argument is a non-starter. Absentcircumstances not alleged here, if the Plaintiffs had engaged in aprivate act of consensual sex with a fellow student, the University couldnot demonstrate a legitimate governmental interest in disciplining themfor doing so, regardless of whether the act took place on campus oroff-campus. Thus, the territorial limitation argument assumes thePlaintiffs committed a sexual assault, but asserts the University has nojurisdiction because the assault took place off-campus.

3. The Plaintiff attached a copy of the "Policy Manual," containingthe Student Code, to their Reply Memorandum. Pl.'s Reply Mem. atEx. A. Neither party attached a copy of the Code to their initialpleadings. Fudge v. Penthouse, Ltd., 840 F.2d 1012, 1015 (1stCir. 1988). Nevertheless, the Complaint makes repeated references to theStudent Code and, in their response, the Defendants quote from the Code,as well. In ruling on the Motion to Dismiss, the Court concludes that itmay consider the contents of the Student Code since the Plaintiffs'claims are inextricably linked to the document and the Defendants havenot challenged its authenticity. Alternative Energy, Inc. v. St. PaulFire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001);Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1stCir. 1998) (favoring practical, commonsense approach instead of oneelevating form over substance); Goodman, 135 F. Supp.2d at46-47. Indeed, at oral arguments, the parties agreed that the Court mayconsider the Student Code in ruling on the Motion to Dismiss.

4. At oral argument, noting that the Complaint failed to allegeselective enforcement, Plaintiffs' counsel indicated he might move toamend the Complaint. Be that as it may, the Court must address what thePlaintiffs have pleaded, not what they might plead. Even a generous viewof the current allegations in the Complaint does not reveal an allegationof selective enforcement.

5. The Court notes the Plaintiffs' claims of procedural deficiencyare substantially broader than these specific instances and, on thatbasis alone, the Plaintiffs' claim of a violation of procedural dueprocess would not be subject to wholesale dismissal.

6. At oral argument, Plaintiffs' counsel reiterated this claim, acontention Defendants' counsel immediately and vigorously disputed.However, the Court at this stage in the proceedings cannot resolve afactual dispute.

7. In their Complaint, the Plaintiffs have alleged that DefendantFiacco, the Judicial Officer of the Student Conduct Code Committee,"asked the Plaintiffs during the hearing if they would waive their rightto due process during the hearing." Complaint at 5. Defendantshave moved to dismiss this allegation on the ground that it fails tostate a claim upon which relief can be granted. In their response, thePlaintiffs have clarified that they are not claiming the question itselfconstituted a violation of their due process rights; instead, theallegation serves to underpin their argument that the Defendants wereaware of the Plaintiffs' rights to due process during the hearing.Pl's Reply Mem. at 8. Thus clarified, it is a factualallegation, not subject to a motion to dismiss.

8. The First Circuit expressed no opinion on Judge Hornby's readingof Rippett and, therefore, its discussion in Napier isnot binding on this Court. Nevertheless, the Napier Courtrecited the reasons for Judge Hornby's view: (1) the statutory languageis clear in that the waiver applies to a "governmental entity"; (2)the Moore Court was explicit in stating that the waiver does notapply to employees; (3) Rippett does not overrule or evenmention Moore; and (4) the Sheriffs Department inRippett was in fact a governmental entity as to which insurancecoverage would waive immunity. Napier, 187 F.3d at 191.

9. Restatement (Second) of Torts § 307 provides: It is negligence to use an instrumentality, whether a human being or a thing, which the actor knows or should know to be so incompetent, inappropriate or defective, that its use involves an unreasonable risk of harm to others.

10. Restatement (Second) of Agency § 213(b) provides: A person conducting an activity through servants . . . is subject to liability for harm resulting from his conduct if he is negligent or reckless: (b) in the employment of improper persons . . . in work involving risk of harm to others. . . .Comment (d) to § 213 gives an example of a principal who, withoutexercising due care in selection, employs a vicious person to do an actwhich necessarily brings him in contact with others while in theperformance of a duty, and is liable for harm caused by the viciouspropensity.

11. At oral argument, Plaintiffs' counsel made the valid point thatthe torts of negligent hiring and negligent supervision seem virtuallyindistinguishable. The Court agrees. It would seem at least inconsistentfor Maine to impose civil liability on an employer for negligent hiringof an employee, but no liability for the same employer's negligentsupervision of the same employee.

12. The Plaintiffs also claim that the actions of the individualDefendants exceeded the scope of their official discretion because theUniversity exceeded its jurisdiction by subjecting the Plaintiffs todiscipline for actions that allegedly took place off campus. The Courtrejected this contention earlier and will not readdress it at thistime.

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