Shapiro v. Roger Williams University et al

Filing 77

MEMORANDUM AND ORDER granting 43 Motion for Summary Judgment as to the individually named defendants (Allison Chase-Padula, Heidi Hartzell, Tony Montefusco, Roy J. Nirschel, Anthony M. Pesare, and Richard Stegman) with respect to personal liability. So Ordered by Chief Judge Mary M. Lisi on 4/30/2012. (A copy of the instant Memorandum and Order was forwarded via first-class mail to Plaintiff's California address.) (Duhamel, John)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND

JOSHUA BARRETT SHAPIRO,
Plaintiff

v.

C.A. No. 011-140-ML

ROGER WILLIAMS UNIVERSITY, et al,
Defendants
MEMORANDUM AND ORDER
(~Shapiro")

The plaintiff in this case, Joshua Barrett Shapiro

(~RWU")

is a former student of Roger Williams University
has brought claims of {1)

breach of contract,

covenant of good faith and fair dealing,

(2)

(3) fraud,

.

Shapiro

breach of the
(4) deceit,

(5)

negligent misrepresentation, and for (6) punitive damages against
RWU, as well as several former and current RWU employees in their
official

and

individual

(the

capacity

Defendants," together with RWU, the

~individually

~Defendants").

named

The matter is

before the Court on the individually named Defendants' motion for
summary judgment.
I. Factual Background
Shapiro attended RWU from the 1999 summer term until October
10,

2001.

dormitories.
persistent

During

that

According
behavioral

time,
to

issues

the

Shapiro

Defendants,

during

Statement of Undisputed Facts ("DSUF")
denies

that

assertion and states
1

lived

that
~

in

the

Shapiro
time.

campus

displayed

Defendants'

4 (Docket # 44). Shapiro

that he

~experienced

quite a

number of incidents with other students which created tension on
the RWU campus."
'li 4

Plaintiff's Statement of Disputed Facts ("PSDF")

(Docket# 47).

During the time Shapiro attended RWU,

individually named Defendants were employed by RWU
capacities:

Allison Chase- Padula

("Chase-Padula")

the

in various

was Associate

Dean of Student Affairs; Heidi Hartzell ("Hartzell") was Director
of

Student

Conduct

("Montefusco")

was

and

Community

Director

of

Standards;
Housing;

Tony
Roy

Montefusco

J.

Nirschel

("Nirschel") was President of RWU; Richard Stegman ("Stegman") was
Dean of Student Affairs; and Anthony Pesare ("Pesare") was head of
the Criminal Justice Department and Shapiro's Academic Advisor.
DSUF 'li 6-11.

While Shapiro agrees that the individually named

Defendants were employed by RWU and were "acting on behalf of
[RWU]," he disputes that they were "agents" of RWU during the
relevant time frame.

PSDF 'li 5.

According to the Complaint, Shapiro was "expelled" from RWU in
the beginning of the 2001 fall term while he was enrolled in the
Criminal

Justice

Complaint

'['[

3,

program
13.

under

Shapiro

the

states

supervision
that,

of

pursuant

to

Pesare.
the RWU

student handbook he received - as do all students attending RWU a student charged with a violation of the University code "will
receive

notice

with

an

explanation

of

the

explanation of the specific charge statement."

incident
Id. 'li 25.

and

an

Shapiro

alleges that he "never received an explanation of any incident or

2

explanation of the specific charge statement or any opportunity to
voice his side of the story."

Id.

~

26.

Shapiro states that each

student "is entitled to a Disciplinary Meeting where the student
will

be

encouraged to

discuss

against him or her," id.

~

and

27.

review

the

charges

brought

He also asserts that

(1)

the

student may choose to admit the charges and have the situation
resolved through an Administrative meeting;
deny

the

charges

administrative

and

hearing

request
officer

review
(or

(2)

of

complete

the student may

the
an

case

by

an

Administrative

Meeting at that time); and that (3) if the outcome of the alleged
violation could result in suspension or expulsion of the student
from RWU,

the Office of Student Conduct and Community Standards

must provide written notice to the student and may give the student
the option of having the case heard by the University Disciplinary
Committee

(UDC)

or have a University Hearing

(UH).

I d.

~27.

Shapiro notes, however, that "[a]t times the University may select
not to give the student an option and send the case to either a UDC
or UH.

The notification will be given at least two calendar days
Moreover,

prior to the hearing."
violation

of

the

Conduct

Code,

the

Vice

"in a

case of alleged

President

of

Student

may remove a case from the University's conduct

Affairs

system" and "have the sole and unreviewable discretion to conduct
hearings,

if any,

appropriate."

upon notice,

and impose such sanctions deemed

Id.

3

According to Shapiro, the Defendants "failed to ensure [he]
hearing,

notice/parental notice 1 of any code

received a

formal

violations,

complaint, or documentation concerning his expulsion

from RWU" and that he "was precluded from asserting his right to
appeal
about."

any decision of RWU that he may have been dissatisfied
Id.

<][

28.

Shapiro also sets forth a litany of complaints

against the individually named Defendants and claims that "each
defendant personally participated and contributed to [his] removal
from RWU."
In

Id.

<][

16.

responding

to

Shapiro's

objection

to

their motion

for

summary judgment, the individually named Defendants have submitted
a series of letters from RWU

(primarily,

the Office of Judicial

Affairs) related to the events that occurred during the 2001 fall
semester. 2

From

those

communications,

it

appears

that,

on

September 21, 2001, Chase-Padula first informed Shapiro that he was
charged with violating the RWU Conduct Code and that a disciplinary
meeting was scheduled for September 25,

2001.

(Ex.

A).

Chase-

Padula also advised Shapiro that, if he failed to appear, she would

Shapiro states that, while he attended RWU, he was financially
dependent on his parents and that, pursuant to the student
handbook, RWU was required to notify his parents in the event of
any code violations.
Id. <JI 29.
2

Because
those
communications
are
part
of
Shapiro's
confidential student records, the Defendants filed them under seal.
Shapiro then filed a motion to unseal the letters (Docket# 55),
which has since been granted (Docket # 73) .
4

render

a

decision

handwritten note,
reschedule."

in

absence.

The

letter

contains

a

stating "failed to pick up or be available -

Id.

On September 27,
Shapiro,

his

2001,

Chase-Padula sent another letter to

informing him of a newly alleged violation of the RWU

Conduct Code,

for which she scheduled a disciplinary meeting on

September 28, 2001.

Ex. C.

Attached to this communication is a

verification form signed by Shapiro and Chase-Padula, confirming
that "two judicial letters" were hand delivered to Shapiro. Ex. D.
On September 28, 2001, Chase-Padula sent a further letter to
Shapiro, informing him of yet another alleged violation of the RWU
Conduct

Code,

which would

also

be

discussed

at

the

scheduled

meeting. Ex. E.
On September 28,

2001,

Hartzell informed Shapiro by letter

that he had been charged with various violations of the Conduct
Code; she noted that, during the September 28, 2001 meeting, he had
requested an Administrative Hearing; and she advised Shapiro that
such a hearing would be conducted on Monday,

October 1,

2001.

Hartzell enclosed a copy of the Administrative Hearing Agenda as
well as an optional Student Response Form for Shapiro to complete,
which would be reviewed by the Hearing Officer.

Hartzell also

explained that Shapiro was permitted to call witnesses and present
documentation at that hearing.

Ex. F. As with all prior letters,

Shapiro signed a form confirming receipt of this communication.

5

Ex. G.
On October 2, 2001, Hartzell notified Shapiro that, following
the Administrative Hearing held on October 1,
Officer recommended that,

"in light

of the

2001,

the Hearing

seriousness

of the

issues at hand, a higher hearing body hear [Shapiro's] case."
H.

Ex.

After describing the charges asserted against Shapiro, Hartzell

explained that "[t]he Office of Judicial Affairs has determined
that these allegations of misconduct are subject to review by a
University Hearing," which deals with cases that could result in
suspension or expulsion.

Id.

Hartzell referred Shapiro to the

applicable provision in the Student handbook and advised him that
he

was

permitted to be

witnesses,

accompanied by an

and to submit documentation.

another optional Student Response Form.
On October

10,

2001,

Chase-Padula,

advisor,

to present

Hartzell also included
Id.
who

hearing officer for Shapiro's judicial review,

functioned

as

the

informed Shapiro

that he was sanctioned "to immediate suspension from the University
through May 25,

2002."

Ex.

Chase-Padula stated that,

J.

with

respect to seven separate incidents resulting in code violations,
Shapiro had pled "in violation" to two of the charges and "not in
violation" to the remaining charges.

Id.

Based on the information

presented, Shapiro's testimony, and the testimony of the witnesses,
she found him in violation of all charges.

Id.

Chase-Padula also

explained that she sanctioned Shapiro through the end of the spring

6

semester,

"so as to allow you the opportunity to return to the

University if you choose during the summer term when it might be
easier for you to reacclimate yourself."

Id.

Further, Chase-

Padula explained the details of Shapiro's suspension and advised
him of certain conditions to his return to RWU.

Chase-Padula noted

that she or Hartzell would place a call to Shapiro's parents to
inform them of the sanction.
that,

Finally, Chase-Padula advised Shapiro

pursuant to the RWU student handbook,

he had a

right to

appeal her decision, and she described the process in some detail.
Id.
In a letter dated October 12,

2001,

Shapiro requested "an

appeal of my recent suspension from [RWU] . "

Receipt of

Ex. L.

Shapiro's request was confirmed via fax signed by both Chase-Padula
and Hartzell.

Ex. 0.

By letter dated October 12, 2001, Dean of

Student Affairs Stegman informed Shapiro that,

after a thorough

review of Shapiro's letter and other pertinent documents, he found
no compelling reasons to grant Shapiro's appeal.

Ex.

M.

result, the sanctions imposed on Shapiro remained in effect.

As a
Id.

II. Procedural History
On April 5, 2011, nearly a decade after the events leading to
this litigation, Shapiro filed a six-count complaint against RWU
and the individually named Defendants.
2011,

he

filed

a

188

paragraph

(Docket #

amended

1) .

complaint

On May 9,
(the

"First

Amended Complaint") (Docket # 5). Shapiro alleged, inter alia, that

7

he was

a

"victim of travesty of

justice,

deliberate injustice

knowingly committed" by the individually named Defendants and "such
gross injustice was committed with wanton, malice and fraud, all of
which

will

pierce

the

University

veil

and

hold

defendants

accountable as any other citizen who violated the law of the land."
First Amended Complaint at 1-2.

Shapiro characterized actions by

former RWU President Roy R. Nirschel ("Nirschel") as a "University
dictatorship and University tyranny."

Id. at 2.

that,

the

in violation

governing

of provisions

disciplinary

hearings

in
and

RWU

notice

Shapiro claimed
Student
of

Handbook

student

code

violations, he was "expelled" from RWU in the beginning of the 2001
fall semester "without proper notice or hearing." Id. at 7.
connection

with

this

alleged

expulsion,

Shapiro

stated

In

that,

because he was financially dependent on his parents while he was a
student,
Shapiro's

RWU was obligated,
parents

about

but failed,

allegations

to appropriately notify

of

code

Id. at 47.

administrative hearings involving Shapiro.
further

stated

that

he

twice

violations

requested,

and

was

"information from RWU concerning why he was expelled."

and/or
Shapiro
denied,

Id. at 11.

Finally, Shapiro asserted that he incurred $30,000 in debt 3 for the
2001 fall

semester and that he received no reimbursement for a

prepaid meal plan after he was "expelled."

Id. at 46.

3

Shapiro also asserted, however, that he discharged such debt
in Chapter 7 bankruptcy proceedings.
Id. at 46.
8

Shapiro seeks compensatory and punitive damages in the amount
of $2,500,000, prospective injunctive relief, declaratory judgment,
and costs of the suit.

First Amended Complaint at 73. In addition,

Shapiro seeks to expunge the record of "his entire third year . .
including

any

internal

disqualification."

disciplinary

action

or

academic

Id. at 72.

On July 7, 2011, the Defendants filed an answer to the First
Amended Complaint, generally denying all of Shapiro's allegations
and asserting nineteen separate affirmative defenses,
insufficiency of service of process.
# 10).

including

Answer Page 12 of 14 (Docket

In later pleadings, the Defendants maintained that Shapiro

was not expelled from RWU, but that, after asserting disciplinary
charges against him, RWU decided to suspend Shapiro and explicitly
informed him what actions he would have to take in order to return.
(Docket # 35) .

Shapiro's appeal of that decision was denied.
On July 27,
Defendants'

2011,

Shapiro filed a motion to strike nine of

affirmative

defenses

on

the

without merit or basis in fact or law.
objected,

(Docket

#15),

exception

of

affirmative

the

and

the

ground that

(Docket # 13).

motion

defense

of

was

2011,

Defendants

denied

failure

administrative remedies, which RWU agreed to waive.
On September 6,

they were

to

with

the

exhaust

(Docket # 19).

Shapiro filed a motion to re-attempt

service of summons and First Amended Complaint on Nirschel who had
moved to

Vietnam in

2010.

(Docket#

9

17).

In

a

supplemental

memorandum filed on October 11,

2011,

Shapiro explained that he

asked the Court "to appoint a U.S. Marshal[] to travel to Vietnam"
to serve Nirschel.
October 18,

2011,

service by mail.

(Docket #24) .

Shapiro's motion was denied on

and the Court suggested that Shapiro attempt
(Docket # 25).

Nirschel was subsequently served

and filed an answer on November 3, 2011 (Docket #30) .
On October
respect

to

contained

20,

2011,

RWU

certain student
identifying

sought

records

information

a

order with

requested by Shapiro which
of

other

(Docket # 27).

interacted with Shapiro

protective

students

who

had

The motion was granted

(Text Order 11/10/11) .
On December 19, 2011, Shapiro filed a lengthy motion seeking
reconsideration of (1)

the Court's determination regarding RWU's

affirmative defenses, (2) the protective order, and (3) unspecified
relief regarding Nirschel's answer. (Docket #31).

Shapiro's motion

was based, in part, on the fact that the Defendants had made their
filings

electronically and had not mailed a

copy to

Shapiro. 4

Shapiro's motion was denied with respect to Items (1) and (3), and
granted with

respect

directed defense
order,

pursuant

to

counsel
to

which

Item

(2).

to

submit

Shapiro

The Magistrate
a

proposed

would

be

Judge

also

confidentiality

provided with

his

4

Shapiro, who is pro se, repeatedly notes in his filings that
his father is an attorney and that Shapiro himself has sought
admission to law school.
10

educational records,
n.5).

subject to such an order.

(Docket #38 at 3

Relatedly, the Defendants' motion to seal certain documents

in Shapiro's student file was granted.

(Docket## 36, 37).

On December 19, 2011, Shapiro filed a 51-page motion to compel
discovery from the Defendants related to the individually named
Defendants' financial conditions and status of employment, which he
sought in order to prove punitive damages.

(Docket # 32).

Shapiro

also filed an objection to Defendants' interrogatories directed at
him

(Docket

# 33) .

Shapiro' s

motion to

compel was

denied on

January 10, 2012 on the Court's determination that, with respect to
the individually named Defendants, Shapiro had
facts

sufficient

to

make

a

claim

for

~failed

punitive

sufficient to show that the claim is not spurious."

to allege

damages

and

(Docket# 39).

On January 30, 2012, the individually named Defendants filed
a motion for summary judgment as to all counts against them on the
ground that the actions asserted against them were performed as
agents and/or employees of RWU acting within the scope of their
authority.

(Docket # 43).

Shapiro filed an objection on February

14, 2012, arguing that (1) the documents under seal, to which the
Defendants

refer

authenticated;
discovery;

(3)

in

their

have

not

been

properly

(2) the motion is premature because of insufficient
the Court failed to provide

Defendants' filings to him.
that Defendants

motion,

~continue

(Docket #46) .

certain orders

and

Shapiro also complains

to not send or properly serve pleadings,

11

motions,
asserts

memorandums,
that

their

and other documents,"

"failure

to

meet

and

id.

at 10,

confer

and he

regarding

its

proposed Motion for Protective Order demonstrates defendants' lack
of commitment in resolving this case."

Id. at 9.

With respect to

the individually named Defendants' position, that they performed
their actions as agents or employees of RWU,
least in some portion of his memorandum)

Shapiro argues

(at

that "Defendants acted

outside of their authority by contravening the terms and conditions
of the RWU student handbook and committing fraud,
negligent misrepresentation as averred, supra."

deceit,

and

Id. at 21.

On February 24, 2012, the Defendants filed a motion to seal
documents which are part of Shapiro's confidential student file
(Docket# 50), which motion was granted by this Court (Docket #51).
Since then, Shapiro has filed a motion to unseal the documents on
the grounds that the Defendants' motion "does not indicate in what
way these documents are confidential and fails to provide a good
faith basis for the requested sealed filings." (Docket# 55 at 2).
Following a hearing on Shapiro's motion on April 16,
motion was granted on April 17, 2012.

2012,

the

(Docket # 73) .

III. Standard of Review

Motions for summary judgment are governed by Rule 56 of the
Federal Rules of Civil Procedure.

The Court must grant summary

judgment "if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a

12

matter of law."

Fed. R. Civ. P. 56(a).

Tropigas de Puerto Rico,

Inc. v. Certain Underwriters at Lloyd's of London, 637 F.3d 53, 56
(1st Cir. 2011).
An issue is "genuine" if "a reasonable jury could resolve the
point in favor of the nonmoving party." Id.

(quoting McCarthy v.

Northwest Airlines,

(1st Cir. 1995)) .

Inc.,

56 F. 3d 313, 315

A

fact is material if it "might affect the outcome of the suit, under
governing law."
247,

Anderson v.

106 S.Ct. 2505, 2510,

Liberty Lobby,

91 L.Ed.2d 102

Inc.,
(1986).

477 U.S.

242,

To determine

whether a genuine dispute as to any material fact exists, the Court
considers the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's
favor.

Markel American Ins. Co. v. Diaz-Santiago,

F.3d -, 2012

WL 883617, *8 (1st Cir. March 16, 2012).
Where
dispositive

"the

nonmovant

issue,

'specific facts'

to

it

bears

must

the

point

stave off

to

burden

of

'competent

summary judgment."

proof

on

the

evidence'

and

Tropigas de

Puerto Rico, Inc. v. Certain Underwriters at Lloyd's of London, 637
F.3d at 56 (citation omitted).

However, "[u]nsupported allegations

and speculation do not demonstrate either entitlement to summary
judgment or the existence of a

genuine issue of material fact

sufficient to defeat summary judgment."
F.3d 9, 12 (1st Cir. 2011).

13

Rivera-Colon v. Mills, 635

IV. Discussion
It is well established law in Rhode Island that "'an agent
acting on behalf of a disclosed principal is not personally liable
to

a

third party for

acts

performed within

the

scope

of

his

authority.'" Alterio v. Biltmore Constr. Corp., 119 R.I. 307, 315,
377

A.2d

Agency,

237,

241

(1977) (quoting

Cardente

v.

Maggiacomo

Inc., 108 R.I. 71, 73, 272 A.2d 155, 156 (1971).

three days of issuing Cardente,

Ins.

Within

the Rhode Island Supreme Court

clarified that an agent was excused from liability only when (1)
acting solely on behalf of a disclosed principal, (2) acting within
the scope of her duties, and (3) she had not undertaken any other
obligation independent of her relationship with the principal.
C.C. Plumb Mixes, Inc. v. Stone, 108 R.I. 75, 76, 272 A.2d 152, 154
(1971).

See

Stebbins

v.

Wells,

818

A.2d

711,

719

(R.I.

2003) (exceptions to rule include challenged acts of agent that are
(1)

outside the scope of the agency,

contract with

the

seller,

and

(3)

(2)
not

to be performed under
within

the

scope

of

a

disclosure duty independent of the agency relationship.)
Although Shapiro flatly denies that the individually named
Defendants

were

agents

unsupported by any facts.

of RWU,

see

PSDF 1

5,

such

denial

is

It is undisputed that these individual

Defendants were employed by RWU during the time at issue, and there
is nothing to indicate that they acted outside of their scope of
authority or

that

they had any

14

independent

obligations

toward

Shapiro.
Shapiro's allegations against Nirschel include that Nirschel
"acted personally" in having Shapiro removed from RWU.
Complaint
Amended

CJI

5.

However,

Complaint,

in

other parts

Shapiro

accuses

of

the

Nirschel

Amended

73-page

of

First

"University

dictatorship and University tyranny" and states that Nirschel has
"acted in a manner [of] conduct unbecoming a University officer."
Id.

166.

c_[

With respect to Stegman, Shapiro asserts that Stegman executed
the

order

to

have

Shapiro

hearing or fair notice.

"expelled"

Id.

5.

CJI

without

affording

him

a

Although Shapiro alleges that

Stegman "acted out of personal motivation and has used his Student
Affairs

office

as

objectives," id.
other

filings

CJI

an

offensive

weapon

to

vindicate

personal

6, nothing in the Amended Complaint or in any

indicates

that

Stegman

ever

acted

outside

his

official capacity as an RWU employee.
Likewise, Shapiro accuses Hartzell of refusing to consider his
side of the story,

id.

CJI

7, while,

at the same time,

he alleges

that Hartzell was "provided with the authority to remove [Shapiro]
from RWU" by Stegman.

Id.

CJI

38.

Further, Shapiro alleges that Chase-Padula, in her position as
"Associate Dean," "assumed the authority and power to act as a
'Dean'

in making decisions."

Id.

CJI

8.

According to Shapiro,

Chase-Padula made no efforts to resolve Shapiro's complaints and

15

"instead stood behind the decisions of her superiors."
Shapiro

also

alleges

that

responsibilities

and

performed by .

. Stegman."

Regarding

duties

Montefusco,

responsible for,

he

did

Montefusco
housing.

not

Finally,

~

Id.

were

~

40.

"assumed

ordinarily

the

executed

or

41.

~

Shapiro

Id.

receive

regarding
Id.

that

but failed in,

Shapiro had with RWU.
that

Chase- Padula

~

Id.

states

that

Montefusco

was

overseeing the housing contract

153. Specifically, Shapiro charges

any

notice

Shapiro's

or

charge

termination

statement

from

RWU

from

student

36.

regarding

Pesare,

Shapiro

states

that,

when

he

complained to Pesare about "his ongoing problems with RWU campus
which interfered with

life concerning his dormitory situation
[his]

education

experience,"

experience

Pesare

"was

as

well

neither

[Shapiro} when he complained."

Id.

as

his

amicable
~

or

overall

living

congenial

with

10.

In essence, Shapiro appears to be accusing the individually
named Defendants of participating in a vast conspiracy to expel him
from

RWU

while

established
allegations,

for

disregarding
such

however,

a

the

process.

bring the

administrative
None

of

these

procedures
unsupported

individually named Defendants'

actions within a possible exception of the rule against personal
liability of agents of a disclosed principal.
that

he

"shared

a

contractual

relationship

16

Shapiro's assertion
with

each

of

the

Defendants," id.
Shapiro's

CJI

63,

unsupported

is also entirely unsupported.
allegations

that

the

Therefore,

individually

named

Defendants acted in a personal capacity rather than within the
scope of authority they held as agents and employees of RWU are
insufficient

to

withstand

the

Defendants'

motion

for

summary

judgment.
Conclusion

For the reasons stated above, the motion for summary judgment
by the

individually named Defendants

liability is GRANTED.

SO ORDERED.
/s/ Mary M. Lisi
Mary M. Lisi
Chief United States District Judge
April 30, 2012

17

with

respect

to personal