Valentine v. Lock Haven University of Pennsylvania of the State System of Higher Education et al

Filing 11

MEMORANDUM (Order to follow as separate docket entry) - RE 4 Defendant's motion to dismiss 4 . Signed by Honorable Matthew W. Brann on 7/14/14. (km)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
ERIKA N. VALENTINE,

:
:
Plaintiff
:
:
v.
:
:
LOCK HAVEN UNIVERSITY OF :
PENNSYLVANIA OF THE STATE :
SYSTEM OF HIGHER
:
:
EDUCATION, et al.,
:
Defendants.
:

No. 4:13-cv-00523
(Judge Brann)

MEMORANDUM
July 14, 2014
For the following reasons, the motion to dismiss (Fed. R. Civ. P. 12(b)(6)) of
Defendants Lock Haven University, Deborah Erickson, Donna Wilson, and Walter
Eisenhauer is granted as to plaintiff’s claims arising under federal law. The Court
will relinquish jurisdiction over plaintiff’s claims arising under state law.
I.

General Background
On February 25, 2013, Defendants removed this case to federal court, citing

28 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (civil rights
jurisdiction). By that time, plaintiff Erika N. Valentine was already onto her Third
Amended Complaint, which set forth eight counts. Two counts are asserted against
1

Lock Haven University (hereinafter, the “University”) alone – count I, petition for
writ of mandamus, and count II, declaratory judgment. Count III alleges that
Defendants Erickson and Eisenhauer, in their personal capacities, violated
Valentine’s substantive due process rights, and count IV alleges that the same
Defendants, again in their personal capacities, violated Valentine’s procedural due
process rights. Count V alleges that Defendant Wilson, in her personal capacity,
violated Valentine’s substantive due process rights. Counts VI and VII allege that
Erickson, Eisenhauer, and Wilson, in their official capacities, as well as the
University, violated Valentine’s substantive (count VI) and procedural (count VII)
due process rights, respectively. Valentine asserts the Defendants are liable for the
foregoing due process violations under 42 U.S.C. § 1983.1 Count VIII alleges that
Eisenhauer intentionally inflicted emotional distress upon Valentine.
On March 19, 2013, Defendants filed a motion to dismiss all claims. (ECF
No. 4). Valentine filed a brief in opposition on April 18, 2013. (ECF No. 10).

42 U.S.C. § 1983 says:

1

Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State or Territory or the District of Columbia,
subjects, or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured in an action at law, suit in equity, or
other proper proceeding for redress . . . .
2

II.

Fed. R. Civ. P. 12(b)(6) Standard
“To survive a motion to dismiss, a complaint must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). “The plausibility standard is not akin to a ‘probability
requirement,’ but it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Iqbal, 556 U.S. at 662. The goal behind the standard is to weed
out those claims that do not present “enough” factual matter, assumed to be true,
“to raise a reasonable expectation that discovery will reveal evidence” in support of
the claims. Twombly, 550 U.S. at 556. Where a “plaintiff[] [fails to] nudge[] [her]
claims across the line from conceivable to plausible, [her] complaint must be
dismissed.” Id. at 570.
As a matter of procedure, the United States Court of Appeals for the Third
Circuit has instructed that,
after Iqbal, when presented with a motion to dismiss for failure to state
a claim, district courts should conduct a two-part analysis. First, the
factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but
may disregard any legal conclusions. [Iqbal, 556 U.S. at 678-79].
Second, a District Court must then determine whether the facts alleged
in the complaint are sufficient to show that the plaintiff has a “plausible
claim for relief.” [Id. at 679].
3

Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009).
The Third Circuit permits the statute of limitations – although technically an
affirmative defense – to be raised on motion under Fed. R. Civ. P. 12(b)(6) as long
as the basis for the defense is apparent from the face of the complaint. See
Robinson v. Johnson, 313 F.3d 128, 135 (3d Cir. 2002).
III.

The Third Amended Complaint
Valentine makes the following allegations in support of her claims.
The University is part of Pennsylvania’s State System of Higher Education.

(Third Am. Compl., Feb. 25, 2013, ECF No. 1-1 ¶ 2). Erickson was once the
University’s Provost and Vice President of Academic Affairs; Wilson currently
holds those titles. (Third Am. Compl. ¶¶ 5, 7). Eisenhauer is an associate professor
at the University and Director of the University’s Physician’s Assistant Program
(hereinafter, the “Program”). (Id. ¶ 9). Valentine was admitted to the Program in
early 2006. (Id. ¶ 10).
Valentine’s troubles began over a year later in summer 2007. It was then that
students and faculty of the Program attended a medical conference – where the
conference was held is not revealed. (Id. ¶ 11). In any event, the conference
concluded, and that evening Valentine dined out together with fellow students at a
restaurant/bar. (Id. ¶ 12). While Valentine and the others were dining, Eisenhauaer
4

entered the restaurant, sat down at Valentine’s table, and encouraged his newfound
company to join him for drinks. (Id. ¶ 14). Valentine and others decided to leave
early, but before they could complete their escape, Eisenhauer took up and kissed
the hand of the “clearly offended” Valentine as the students were exiting. (Id. ¶ 1516). Eisenhauer’s indiscretion generated an “anonymous report of the kiss and the
offensive behavior exhibited by Eisenhauer toward Valentine” at the restaurant.
(Id. ¶ 17). Eisenhauer mistakenly believed that Valentine had authored the report,
and began a scorched earth campaign to drum Valentine out of the Program. (Id. ¶
18).
Eisenhauer’s first shot came out of the blue in August 2007: he asserted that
Valentine lacked the prerequisite coursework necessary for admission to the
Program. (Id. ¶¶ 21-22). Alone among her peers, Valentine was threatened with
dismissal if she did not resubmit her undergraduate transcripts to prove she had
completed the Program prerequisites. (Id. ¶¶ 23
Surviving that skirmish, Valentine continued in the Program without
incident until February 11, 2008, when Professor Anna Mae Smith, at Eisenhauer’s
behest, abruptly informed Valentine that she (Valentine) was dismissed from the
Program for failure to turn in an assignment from winter 2007, an assignment
Valentine had not previously been informed was missing. (Id. ¶¶ 26, 28-30). At the
5

time of Smith’s tidings, Valentine was in the midst of an off-site clinical rotation;
Smith told Valentine not to continue. (Id. ¶¶ 25, 31). The next day, February 12,
2008, Eisenhauer confirmed Valentine’s dismissal by e-mail and reiterated that she
was not permitted to return to her clinical rotation. (Id. ¶ 32). A formal dismissal
letter followed on February 15, 2008. (Id. ¶ 34). Valentine’s dismissal was not
preceded by a hearing and did not comply “with the written policies and
procedures of [the University] regarding academic misconduct and dismissal from
the University.” (Id. ¶¶ 35-36).
Proceeding “under the [University] appeals process policies and
procedures,” Valentine appealed her dismissal to Eisenhauer on February 15, 2008.
(Id. ¶ 37). Eisenhauer denied Valentine’s appeal on February 29, 2008. (Id. ¶ 38).
Valentine appealed Eisenhauer’s denial to the University’s Graduate Council,
which held a hearing – attended by Valentine and her legal counsel – on March 21,
2008. (Id. ¶¶ 39-41). At the hearing, Eisenhauer confronted Valentine with
accusations that, it was revealed, he had never notified her of prior to the hearing.
(Id. ¶¶ 42-45). On April 7, 2008, the University’s Graduate Council readmitted
Valentine to the Program “without prejudice or qualification.” (Id. ¶ 46). Valentine
had not been permitted to continue her coursework while her appeals were
pending. (Id. ¶ 33).
6

Eisenhauer did not cease fire, conditioning Valentine’s readmission on his
designation of her advisor, Professor Steve Harris, and on Valentine taking a
practical examination that Eisenhauer would proctor and grade. (Id. ¶¶ 49-51).
Eisenhauer represented that the examination was intended to refresh Valentine’s
skills and would not count against her, but after Valentine took the examination,
Eisenhauer told her that she had failed and would have to take it again. (Id. ¶¶ 5355). Valentine took the exam again; Eisenhauer told her that she had failed again.
(Id. ¶ 56). He added that, were Valentine to fail a third time, she would be
dismissed from the Program. (Id. ¶ 57). After Valentine’s counsel intervened, it
was agreed that Valentine would take a third exam with Professor Harris present
during evaluation. (Id. ¶ 59). With Harris present, Valentine passed. (Id. ¶ 60).
Readmitted to the Program, Valentine requested that her next clinical
rotation return her to the doctor’s office from which she had been removed in
February 2008. (Id. ¶ 61). Students in the Program are generally permitted to select
the doctor who will supervise them on their rotations, but Eisenhauer denied
Valentine’s request and assigned her a supervisor with whom he had “connections
and close associations, including an employment relationship,” according to
Valentine. (Id. ¶¶ 62-63). After her lawyer intervened, however, Valentine’s initial
request was granted. (Id. ¶¶ 64-65).
7

Eisenhauer then unilaterally – and without explanation – changed
Valentine’s advisor from Professor Harris to two professors whose “decisions he
[(Eisenhauer)] could control,” according to Valentine. (Id. ¶¶ 66-68). Valentine
was the only student whose advisor was unilaterally changed by Eisenhauer at that
time, and she became the only student in the Program with two advisors. (Id. ¶¶
69-70).
Then the coup de grace. In December 2008, during Valentine’s last rotation
necessary to complete the Program, Eisenhauer summoned her to return to the
University to take her summative examinations. (Id. ¶ 71). By contrast, none of her
peers was likewise required to take summative exams prior to completion of
clinical rotations and before the end of the semester. (Id. ¶ 72).
Eisenhauer proctored one of the exams – an “open-book, open-notes, opencomputer examination” – and he left the room once the exam commenced, so
Valentine could not ask him questions (which would have been permissible as
well, apparently). (Id. ¶¶ 74-77). Before Valentine had finished her exam, and
without warning her that the time allotted for the test had expired, Eisenhauer
reentered the examination room and demanded that Valentine turn in her answers
for grading. (Id. ¶78). Because it was unfinished, Valentine’s exam included
excerpts from published articles without citation; Valentine did not have the
8

opportunity to add citations or remove the excerpts as appropriate. (Id. ¶ 79).
The exam was reviewed by Eisenhauer and his alleged adjutant, Professor
Curtis Grenoble, one of the two advisors Eisenhauer had assigned to Valentine.
(Id. ¶ 80). Eisenhauer and Grenoble determined that Valentine had plagiarized and
informed her that she would receive a failing grade for her rotation, and that she
would be dismissed from the Program. (Id. ¶¶ 80-81). Indeed, Valentine was
dismissed, and – in violation of applicable “policies and procedures” set forth by
the University and the Pennsylvania State System of Higher Education Board of
Governors – she was not allowed to continue in the Program while her appeals
were heard. (Id. ¶¶ 82-84). Specifically, “[b]efore Valentine’s case was
adjudicated, Eisenhauer and the [Physician’s Assistant] Program did not allow
Valentine to complete her remaining summative examinations, cut off her access to
all program materials, deactivated her school email address, and reported her as not
enrolled/withdrawn to the National Student Loan Data System.” (Id. ¶ 85).
In accordance with University policy, Valentine appealed to a University
hearing officer. (Id. ¶ 87). On February 20, 2009, the appointed officer, Professor
Douglas S. Campbell, held a hearing on the plagiarism charges. (Id. ¶¶ 88-89).
Four days later, on February 24, 2009, Campbell concluded that Valentine should
be dismissed from the Program. (Id. ¶ 90). Valentine appealed to the Vice
9

President of Academic affairs, who assigned her appeal to the University
Academic Appeals Board, which held a hearing on December 11, 2009. (Id. ¶¶ 9193). On January 19, 2010, the Academic Appeals Board recommended a new
hearing for Valentine based on the existence of evidence not presented at the
hearing before Campbell: “The Academic Appeals Board believes that this
evidence should be reviewed to ascertain its appropriateness to Ms. Valentine’s
appeal.” (Id. ¶ 94 & Ex. A).
Defendant Erickson appointed Dr. Howard R. Congdon as the new hearing
officer. On May 27, 2010, Congdon decided that Valentine should be readmitted to
the Program without prejudice, and that an “incomplete” should be substituted for
her failing grade on her summative examination, giving Valentine another shot at
completing the requirements of the Program. (Id. ¶ 96). The University, however,
did not act on Congdon’s determination. (Id. ¶ 97). Valentine’s counsel made
numerous inquiries, and finally, by letter dated August 16, 2010, Erickson
explained the reason for the University’s inaction:
I have had the opportunity to review Dr. Congdon’s determination and
I find that there was no “new evidence” provided by Ms. Valentine to Dr.
Congdon. . . . Dr. Congdon, rather than review “new evidence”
substituted his interpretation of various legal principles and his own
concept of justice and fairness. This was not the purpose for granting an
additional hearing. The purpose of the new hearing was to determine if
the “new evidence” presented by Ms. Valentine in any way would
impact the analysis and determinations of Dr. Campbell. Seeing no such
10

new evidence in the record before me, I find Dr. Congdon’s
determination to be just a rehash of the same evidence that was presented
to Dr. Campbell. Accordingly, Dr. Congdon’s determination is vacated.
Dr. Campbell’s determination . . . is cogent, states the necessary standard
of reivew, and disposes of all of Ms. Valentine’s alleged claims of error.
I find his analysis sound and adopt his reasoning in total.
Therefore, at this time, I am reinstating the decision of Dr. Douglas
Campbell . . . .
(Id. ¶¶ 98-100 & Ex. C).
IV.

Discussion
The Court will address only Valentine’s claims arising under federal law,

which the Court concludes should be dismissed; the Court will relinquish
jurisdiction over plaintiff’s claims arising under state law.
(a)

Substantive Due Process
Valentine alleges that Eisenhauer, Erickson, and Wilson, in their personal

and official capacities, as well as the University, deprived Valentine of her
substantive due process rights. (see Third Am. Compl. Counts III, V-VI).
Defendants argue that Valentine’s substantive due process claims must be
dismissed because, inter alia, she has failed to assert an interest to which
substantive due process protection applies. (See Def. Supp. Br., Apr. 4, 2013, ECF
No. 9 at 21-22). The Court agrees with the Defendants.
“To prevail on a non-legislative substantive due process claim” – which is
11

what Valentine’s claim is – “‘a plaintiff must establish as a threshold matter that
[she] has a protected property interest to which the Fourteenth Amendment’s
[substantive] due process protection applies.” Nicholas v. Pennsylvania State
Univ., 227 F.3d 133, 139-40 (3d Cir. 2000) (Alito, J.) (quoting Woodwind Estates
Ltd. v. Gretkowski, 205 F.3d 118, 123 (3d Cir. 2000)). Not all property interests
are so protected, and whether a particular species of property receives substantive
due process protection “is not determined by reference to state law, but rather
depends on whether that interest is ‘fundamental’ under the United States
Constitution.” Nicholas, 227 F.3d at 140.
“[S]o far,” at least in this Circuit, the courts “have limited non-legislative
substantive due process rights to real property ownership,” and have “declined to
recognize a fundamental property interest in a variety of other circumstances.”
Connection Training Serv. v. City of Philadelphia, 358 F. App’x 315, 320 (3d Cir.
2009). One of these “other circumstances” includes a case that presented “the issue
of due process requirements in the dismissal of a student from a state university’s
graduate program.” Mauriello v. Univ. of Med. & Dentistry of New Jersey, 781
F.2d 46, 47 (3d Cir. 1986). Although the Mauriello Court was not required to reach
the issue, Judge Weis nevertheless “strongly suggested in dictum that a student’s
right to continued enrollment in a graduate program does not” warrant substantive
12

due process protection. Homar v. Gilbert, 89 F.3d 1009, 1021 (3d Cir. 1996), rev’d
on other grounds, 520 U.S. 924 (1997).
In the face of the Circuit court’s “strong suggestion” that her interest2 is not
so “fundamental” to be deserving of substantive due process protection, Valentine
tepidly restates her position that she has a property interest in tuition payments and
educational opportunity, and asserts that the court in Rivera v. Lebanon Sch. Dist.,
825 F. Supp. 2d 561 (M.D. Pa. 2011) (Kane, J.), “recognized that money is a
protected interest.” (Pl. Opp’n Br., Apr. 18, 2013, ECF No. 10 at 12).
This argument goes nowhere because Rivera involved a procedural due
process claim, not a substantive due process claim, and “‘not all property interests
worthy of procedural due process protection are protected by the concept of
substantive due process.’” Nicholas, 227 F.3d at 140 (quoting Reich v. Beharry,
883 F.2d 239, 243 (3d Cir. 1989)). Indeed, courts should be “reluctant to extend
substantive due process protection to other, less fundamental property interests”
than interests in real property. Nicholas, 227 F.3d at 141.
In light of the foregoing, the Court will grant Defendants’s motion to

Valentine asserts that she “has a property interest in the money she
expended for tuition” and “in the educational opportunity she paid for.” (See Third
Am. Compl. ¶¶ 154-55, 176-77, 187-88). Breaking her interest down this way does
not distinguish it from the “right to continued enrollment in a graduate program”
considered in Mauriello.
2

13

dismiss Valentine’s Counts III, V, and VI, each based on an alleged violation of
Valentine’s substantive due process rights.
(b)

Procedural Due Process
Valentine also alleges that Eisenhauer and Erickson, in their personal

capacities, Wilson, in her official capacity, and the University, deprived Valentine
of her procedural due process rights. (see Third Am. Compl. Counts IV, VII). In
support of her claim, Valentine includes a laundry list of factual assertions that she
puts under the heading of “[p]ursuing means to remove Valentine, without cause,
from” the Program. (Id. ¶ 168(f)). The list includes Eisenhauer’s impugning of
Valentine’s prerequisites in 2007; Eisenhauer’s early-2008 dismissal of Valentine
on the basis of a missing assignment (including Eisenhauer’s failure to disclose the
totality of his charges against Valentine before her appeal); Eisenhauer’s
imposition of a practical examination upon Valentine as a condition of her return to
the Program (including Eisenhauer’s decision to twice give Valentine a failing
grade); Eisenhauer’s removal of Professor Harris as Valentine’s advisor;
Eisenhauer’s attempt to control Valentine’s clinical rotation supervisor;
Eisenhauer’s early recall of Valentine from her clinical rotation to take summative
examinations; and Eisenhauer’s trumped-up charges of plagiarism in late 2008.
(Id.). In addition, Valentine alleges that her procedural due process rights were
14

violated when Eisenhauer dismissed Valentine for plagiarism outside of “required
disciplinary procedures,” and when Erickson failed to follow the appellate
procedures prescribed by law and Program policy, specifically by vacating the
decision of Dr. Congdon to reinstate Valentine. (Id. ¶¶ 168(a)-(e)).
The Defendants argue that some or all of Valentine’s procedural due process
claims should be dismissed because she was given all the process she was due, her
claims against the University and the individual defendants in their official
capacities are defective, and all of her claims are barred by the statute of
limitations. The Court addresses these arguments in turn.
Ignoring all but the allegations stemming from Valentine’s ultimate
dismissal from the Program for plagiarism, the Defendants argue that Valentine
was given all the process she was due because “the University’s professors
dismissed [her]” and an appellate “hearing was held before Dr. Campbell.” (Def.
Supp. Br. at 25-26). Moreover, Valentine was granted “a new hearing before Dr.
Congdon,” who also found that she plagiarized (though he believed milder
discipline was in order). (Id.). Accordingly, Defendants assert, Valentine’s
procedural due process allegations are “clearly without merit.” (Id.)
The Defendants’s argument relies on the assumption that Valentine’s
dismissal for plagiarism was “academic” in nature; Valentine disputes this
15

assumption, arguing that her dismissal was “disciplinary,” and with good reason
because the distinction has implications for the process due before a student can be
expelled. Disciplinary dismissals must be preceded by, at least, notice to the
student of the charges against her, an explanation of evidence underlying the
charges, and an opportunity for the student to present her side of the story. See
Palmer v. Merluzzi, 868 F.2d 90, 93 (3d Cir. 1989). In contrast, because “the
determination whether to dismiss a student for academic reasons requires an expert
evaluation of cumulative information and is not readily adapted to the procedural
tools of judicial or administrative decisionmaking,” the United States Supreme
Court in Bd. of Curators of Univ. Of Missouri v Horowitz held that “far less
stringent procedural requirements [are called for] in the case of an academic
dismissal.” 435 U.S. 78, 86, 90 (1978). The Third Circuit has said that “an informal
faculty evaluation is all that is required.” Hankins v. Temple Univ. (Health Sci.
Ctr.), 829 F.2d 437, 445 (3d Cir. 1987).
The weight of authority – which this Court sees no compelling reason to
depart from – supports Valentine’s contention that her dismissal is better
characterized as disciplinary than academic. See Pugel v. Bd. of Tr. Of Univ. of
Illinois, 378 F.3d 659, 663 (7th Cir. 2004) (“Courts addressing graduate student
dismissals on charges of academic dishonesty traditionally have relied upon Goss,”
16

the seminal case on student disciplinary suspensions/dismissals). And because the
Defendants place all their eggs in the “academic dismissal” basket, their arguments
to the effect that Valentine was provided the minimal process she was due crack up
once it turns out that she was due significantly more.
In any event, taking Valentine’s allegations at face value, she adequately
alleges a violation of her right to procedural due process. Assuming that her
dismissal implicated a property right, which Defendants do not dispute (Def. Supp.
Br. at 24-27), see also Borell v. Bloomsburg Univ., 955 F. Supp. 2d 390, 402
(M.D. Pa. 2013) (Caputo, J.) (“Courts in the Third Circuit have repeatedly
recognized that a graduate student has a property interest protected by procedural
due process in the continuation of his or her course of study under Pennsylvania
law.”), she asserts that she was accused of plagiarism and dismissed from the
Program by Eisenhauer and Grenoble, apparently without a hearing of any sort.
(See Third Am. Compl. ¶¶ 80-87). Since the University’s appeals process is no
substitute for adequate pre-dismissal procedures, see Assenov v. Univ. of Utah,
553 F. Supp. 2d 1319, 1328 (D. Utah 2008) (“Implicit in [the Supreme Court’s
school discipline] cases is that post-dismissal procedure alone is not
constitutionally sufficient.”); Alvin v. Suzuki, 227 F.3d 107, 120 (3d Cir. 2000)
(“[I]f the Constitution requires pre-termination procedures, the most thorough and
17

fair post-termination hearing cannot undo the failure to provide such procedures.”),
Valentine’s allegations are sufficient to state a claim.
The Defendants further argue, however, that Valentine’s procedural due
process claim against the University must be dismissed because the University is
“part of the state. . . protected by Eleventh Amendment immunity,” and because
“only ‘persons’ are subject to suit under § 1983, not states.” (Def. Supp. Br. at 2324). Likewise, Defendants argue that Erickson, Eisenhauer, and Wilson cannot be
sued in their official capacities because “state officials acting within their official
capacities are not ‘persons’ capable of being sued” under § 1983. (Id.). Valentine
rejoins that she seeks injunctive relief (reinstatement in the Program), which can be
pursued “against a state official in [sic] their official capacity.” (Pl. Opp’n Br. at
10).
Valentine is right, see Will v. Michigan Dept. of State Police, 491 U.S. 58,
71 n.10 (1989) (Ex Parte Young exception allows § 1983 “official capacity” suit
against state official where plaintiff seeks injunctive relief). Accordingly,
Valentine’s Count VII should be dismissed as to the University because the
University is immune from suit, see Bowers v. Nat’l Collegiate Athletic Ass’n, 475
F.3d 524, 546 (3d Cir. 2007) (“[W]e have held in the past that the Pennsylvania
System of Higher Education was entitled to Eleventh Amendment immunity.”),
18

and not a “person” for purposes of § 1983, see Will, 491 U.S. at 71, but not as to
the other Defendants. Since the Defendants do not contend that Valentine’s claim
fails to satisfy the requirements of the Ex Parte Young exception, the Court does
not consider the issue.
Were that all, Valentine’s claims against the individual Defendants –
Eisenhauer, Erickson, and Wilson – would survive. But the Defendants also argue
that Valentine’s § 1983 claims are barred by the two-year statute of limitations
(Def. Supp. Br. at 14 (citing Garvin v. City of Philadelphia, 354 F.3d 215, 220 (3d
Cir. 2003) (Section 1983 borrows Pennsylvania’s two-year statute of limitations on
personal injury actions))), and here Valentine runs into fatal trouble.
Valentine does not dispute Defendants’s contention that the statute began to
run (at the latest) on August 16, 2010, the date of Erickson’s letter reaffirming
Valentine’s dismissal. (Def. Supp. Br. at 14). Nor does Valentine dispute that she
first asserted her § 1983 claims in her Third Amended Complaint, filed January 28,
2013, months after the statute of limitations had run out. Valentine argues, rather,
that her § 1983 claims relate back to her prior pleadings, which were timely.3 (Pl.
Opp’n Br. at 7-8).
Valentine’s Complaint was filed on January 26, 2011. (Def. Supp. Br. Ex.
A, ECF No. 9-1). Her Amended Complaint was filed on March 24, 2011. (Def.
Supp. Br. Ex. B, ECF No. 9-2). Her Second Amended Complaint was filed on July
12, 2012. (Def. Supp. Br. Ex. C, ECF No. 9-3).
3

19

Since Valentine’s Third Amended Complaint was filed in the Court of
Common Pleas, Pennsylvania’s relation back rules apply, see 3 Moore’s Federal
Practice, § 15.20(5) (Matthew Bender 3d ed.) (“[W]hen an amendment to a
pleading is made in state court prior to removal, state relation back law controls,
and the federal court must apply those rules even after removal.”), and under
Pennsylvania law, “an amendment may not introduce a new cause of action after
the statute of limitations has run its course.” Kuisis v. Baldwin-Lima-Hamilton
Corp., 457 Pa. 321, 319 A.2d 914, 918 (1974). Candidly, if not helpfully in light of
the heavy reliance placed on the concept, the Supreme Court of Pennsylvania has
“never adopted a comprehensive definition of what constitutes a cause of action,
for the excellent reason that no such definition exists.” Kuisis, 319 A.2d at 918 n.7.
But Pennsylvania courts have employed various “tests for determining when an
amended complaint presents a different cause of action.” Frey v. Pennsylvania
Elec. Co., 414 Pa. Super. 535, 607 A.2d 796, 798 (1992) (cited by Valentine, Pl.
Opp’n Br. at 8). These “tests” involve comparing a plaintiff’s previous timely
claim with her new untimely claim to determine “whether a judgment would
foreclose any action on either; whether the same measure of damages supports
both; whether the same defenses are available in each; and whether the same
measure of proof is required. Frey, 607 A.2d at 798. ‘No’ answers to these test
20

questions indicate the untimely claims constitute a different cause of action and are
barred.
Instructively, the Commonwealth Court of Pennsylvania has applied the
standard to late-coming § 1983 claims like Valentine’s. In Davis v. City of
Philadelphia, Davis originally filed a negligence suit alleging wrongful death
against the City and sought to add a § 1983 claim after the statute of limitations
under § 1983 had run. 168 Pa. Commw. Ct. 334, 650 A.2d 1127, 1128 (1994).
Both claims were based on the same event: the decedent, a diabetic, had allegedly
been falsely arrested and taken to the local police station, where she died of insulin
shock for lack of medical care. Davis, 650 A.2d at 1128. The Davis court
nevertheless held that the § 1983 claim constituted a new cause of action,
reasoning, inter alia, that “[a] different governmental entity created the Section
1983 claim than the one which allowed common law remedies, and for different
reasons – one to enforce the Fourteenth Amendment and one to compensate
individuals for harm done by the negligence of others”; that “a different measure of
proof is required” under § 1983 and common law negligence;4 and that different
Drawing a contrast with the plaintiff’s existing negligence action, which
would require the plaintiff to prove merely that the defendant breached the duty of
ordinary care, the court noted that, to prove his § 1983 claim, the plaintiff would
have to establish that the decedent was deprived of a federal right by a defendant
acting under color of state law and pursuant to municipal policy or custom, as well
as deliberate indifference to the decedent’s medical needs.
4

21

defenses are available under § 1983 (e.g., governmental immunity under
Pennsylvania law unavailable) and common law negligence (governmental
immunity under Pennsylvania law available).
In Burger v. Borough of Ingram, Burger originally asserted claims of
wrongful arrest against two Pennsylvania boroughs, and she sought to add a § 1983
claim after the statute of limitations under § 1983 had run. 697 A.2d 1037, 103940 (1997). As in Davis, all of the claims were based on the same event: Burger’s
arrest and detention by two police officers. Burger, 697 A.2d at 1039. And like the
Davis court, the Burger court held that the § 1983 claim constituted a new cause of
action, reasoning that, in comparison with a wrongful arrest claim, a § 1983 claim
“propose[s] a different legal theory and require[s] additional facts.” Burger, 697
A.2d at 1042. The court noted that the “touchstone of a section 1983 action against
a governmental body is an allegation that an official policy, custom or usage is
responsible for a deprivation of rights protected by the Constitution,” but Burger,
in her original complaint alleging wrongful arrest, “never averred . . . that an
official policy, custom or usage of the [boroughs] deprived her of rights protected
by the Constitution.” Id.
In the case at bar, over the course of three previous complaints Valentine’s
grievance has been twofold. First, the University ignored procedures it was bound
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to follow by Pennsylvania law and its own commitments (set forth in the
University’s Student Handbook); and second, various individuals (Eisenhauer,
Grenoble, Erickson) intentionally inflicted emotional distress upon Valentine. To
determine whether Valentine’s § 1983 claims raise a new cause of action, the Court
will focus on the comparison between her § 1983 claims and her previous evolving
claims based on the University’s failure to adhere to required procedures. (A §
1983 claim asserting the violation of a plaintiff’s procedural due process rights is
not even arguably the same cause of action as a claim alleging intentional infliction
of emotional distress.)
Review of Valentine’s original Complaint shows that she alleged that the
University breached its contract (i.e., the Student Handbook) with her when it
failed to adhere to the procedures set forth in the Student Handbook for addressing
charges of misconduct. (Compl., Def. Supp. Br. Ex. A, ECF No. 9-1 ¶¶ 62-74). In
the same Complaint, she alleged that the University had committed a “violation of
due process,” again basing this assertion on the University’s failure adhere to the
“procedures contained in the Student Handbook,” as well as procedures contained
in 22 Pa. Code § 505.3 and 24 P.S. § 20-2006-A. (Compl. ¶¶ 75-80).
In her first Amended Complaint, Valentine alleged that the University had
committed a “violation of due process” when it failed to follow the same
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procedures enumerated in the original Complaint, but this time Valentine added
that the University’s failure violated her rights “under the United States
Constitution and the Pennsylvania Constitution and her Pennsylvania statutory
rights to specified procedures.” (Am. Compl., Def. Supp. Br. Ex. B, ECF No. 9-2
¶¶ 64-78). Valentine also restated her breach of contract allegations.
In her Second Amended Complaint, Valentine petitioned for a writ of
mandamus directing the University to comply with the procedures enumerated in
the two previous complaints, and sought declaratory judgment to the effect that the
University had not complied, but must comply in the future, with those same
procedures. (Second Am. Compl., Def. Supp. Br. Ex. C, ECF No. 9-3 ¶¶ 96-143).
She omitted her previous allegations claiming a violation of the United States
Constitution.
Comparing the allegations of Valentines’ previous complaints to her Third
Amended Complaint’s claims under § 1983, the Court concludes that the § 1983
claims state a new cause of action barred by the statute of limitations.
The comparison is an awkward one. Valentine’s first Amended Complaint
comes closest to previewing her Third Amended Complaint’s § 1983 claims; she at
least mentions her rights under the United States Constitution. Even so, her first
Amended Complaint’s allegations fault the University, not the individual
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Defendants, and she says nothing about § 1983. Of course, it made sense to say
nothing of § 1983, since the University (i.e., the state) is not subject to suit under §
1983, and proceeding under that provision would have been unfruitful.
Unfortunately, the alternative approach Valentine took in her first Amended
Complaint – rooting her entitlement to retrospective damages from the University
in the United States Constitution in the style of a Bivens claim – is also unfruitful,
and not only because of sovereign immunity: “The federal courts have consistently
adhered to the principle that § 1983 preempts Bivens-type remedies against those
who acted under color of state law.” Martin A. Schwartz, Section 1983 Litigation
Claims and Defenses § 1.05(E)(1) (4th ed. 2009). All of this is to say that the
Constitutional claim against the University in Valentine’s first Amended
Complaint is something of a legal unicorn, imaginable but nonexistent, which
makes comparing that claim to her Third Amended Complaint’s § 1983 claims
against the individual Defendants a challenge.
Nevertheless, the Court readily concludes that Valentine proposes different
causes of action in her first Amended Complaint’s due process claim against the
University and her Third Amended Complaint’s § 1983 claims against Eisenhauer,
Erickson, and Wilson in their official capacities. In § 1983 suits against state
officers in their official capacities, “the real party in interest . . . is the
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governmental entity and not the named official, [and] the entity’s policy or custom
must have played a part in the violation of federal law.” Hafer v. Melo, 502 U.S.
21, 25 (1991). Moreover, to avoid dismissal under Will v. Michigan Dept. Of State
Police, the official capacity suit must be for injunctive relief. But Valentine’s due
process claim in her first Amended Complaint seeks retrospective damages, and
does not allege that the University has a policy or custom of violating the federal
Constitution. In the language of the “tests” set forth in Frey, Valentine’s § 1983
official capacity claim is supported by a different “measure of damages”
(injunctive relief v. retrospective damages) and involves different defenses (the
state can assert sovereign immunity whereas the officials sued for injunctive relief
cannot) and a different “measure of proof” (Valentine makes no allegation
respecting the policy or custom in her first Amended Complaint, a required
element of an official capacity suit under § 1983). Failure of these tests indicates
that Valentine’s § 1983 claims raise a new cause of action.
The Court just as readily concludes that Valentine proposes a different
cause of action with her Third Amended Complaint’s § 1983 claims against
Eisenhauer, Erickson, and Wilson in their personal capacities. First, obviously, the
individual Defendants are not the University (against whom Valentine asserted her
timely claim), and Valentine’s first Amended Complaint does not allege that the
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individual Defendants were acting under color of state law, a necessary element of
a § 1983 personal capacity claim. Hafer, 502 U.S. at 25. Second, whereas the
defense of sovereign immunity is available to the state, it is not available to state
officials in their personal capacities. And third, defendants sued in their personal
capacities may assert the “personal immunity defenses such as objectively
reasonable reliance on existing law,” whereas the state cannot. Id. Like her official
capacity claims, Valentine’s personal capacity claims under § 1983 involve proof
and defenses different from those implicated in her first Amended Complaint.
On the dimensions the courts found relevant in Davis and Burger, the claims
in Valentine’s timely complaints cannot be squared with her Third Amended
Complaint’s § 1983 claims. Accordingly, the Court holds that Valentine’s § 1983
claims state a new cause of action barred by the statute of limitations.
(c)

State Law Claims
The Court will relinquish jurisdiction over Valentine’s state law claims in

accordance with 28 U.S.C. § 1367(c)(3). See Hedges v. Musco, 204 F.3d 109, 123
(3d Cir.2000) (emphasis in original) (quoting Borough of West Mifflin v.
Lancaster, 45 F.3d 780, 788 (3d Cir.1995)) (“[W]here the claim over which the
district court has original jurisdiction is dismissed before trial, the district court
must decline to decide the pendent state claims unless considerations of judicial
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economy, convenience, and fairness to the parties provide an affirmative
justification for doing so.”).
V.

Conclusion
For the foregoing reasons, the motion to dismiss of Defendants Lock Haven

University, Deborah Erickson, Donna Wilson, and Walter Eisenhauer is granted as to
plaintiff’s claims arising under federal law. The Court will relinquish jurisdiction over
plaintiff’s claims arising under state law.

BY THE COURT:
s/Matthew W. Brann
Matthew W. Brann
United States District Judge

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