NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-4033
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MICHAEL OSEI,
Appellant
v.
TEMPLE UNIVERSITY,
of the Commonwealth System of Higher Education;
DR. MIA K. LUEHRMANN,
Associate Dean of Undergraduate Studies
ANDREA C. SEISS, Senior Associate Dean of Students;
DR. ROBERT J. LEVIS, Department of Chemistry, Chairman Professor;
DR. GRANT KROW, Professor of Chemistry;
DR. ANNE WEAVER HART, Individually and in her Official
Capacity as President of Temple University;
BRIAN C. FOLEY, Individually and in his Official Capacity as Vice Chair,
University Disciplinary Committee, Temple University;
DR. KEITH GUMERY, Individually and in his Official Capacity as Vice Chair,
University Disciplinary Committee, Temple University
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Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 2-10-cv-02042)
District Judge: Honorable C. Darnell Jones, II
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Submitted Under Third Circuit LAR 34.1(a)
March 5, 2013
Before: RENDELL, AMBRO, and VANASKIE, Circuit Judges
(Opinion filed March 11, 2013)
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OPINION
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AMBRO, Circuit Judge
Appellant Michael Osei appeals the District Court‟s order granting the
Defendants‟ motion to dismiss his procedural due process claim. We affirm.
I.
Osei was enrolled in a bachelor‟s degree program in healthcare management at
Defendant Temple University of the Commonwealth System of Higher Education
(“Temple”).1 Because Osei is originally from the Republic of Ghana, his first language
is Ghana Twi of the Akan (Asante) tribe.
After receiving an allegedly unfair grade in Defendant Dr. Grant Krow‟s organic
chemistry class, Osei sent Dr. Krow a series of e-mails in December 2009. His second e-
mail to Dr. Krow explained that an unfair grade would result in “a curse against [Dr.
Krow‟s] life and family forever.” In the third e-mail, Osei explained: “I just want justice
on you physically and spiritually. Your game is over! Mine begins. You played with the
wrong person this time. Cooperate to prevent things from escalating.” A follow up email
warned: “Mar[k] my words: The year 2010 will not start well for you.”
On January 12, 2010, the University Disciplinary Committee formally informed
Osei that he had been charged with violating Temple‟s Student Code of Conduct for
sending “threatening e-mails to Dr. Grant Krow in reference to receiving a poor grade.”
1
These facts are as alleged in Osei‟s Amended Complaint.
2
It quoted a portion of Osei‟s second email to Dr. Krow and referred to a provision of the
Code that prohibits “[a]ny act or threat of intimidation or physical violence toward
another person including . . . threatened assault or battery.” A January 28 “Notice of
Hearing” stated that a hearing on the alleged Code violation was scheduled for February
3 and that Dr. Krow would act as a witness, among others. The day before the hearing
Osei was informed that Dr. Mia Luehrmann (Associate Dean of Undergraduate Studies
for the College of Science and Technology) would also be called as a witness. Less than
twenty minutes prior to the hearing, Osei was told that his other e-mails to Dr. Krow
would also be presented at the hearing.
Osei attended the February 3 hearing with an attorney advisor who was not
allowed to participate. Dr. Krow did not ultimately attend, but others testified that Dr.
Krow had “felt threatened,” “was worried about what to do,” and was “a little spooked”
by Osei‟s emails. The witnesses also referred to issues Osei had with another faculty
member. Osei had a chance to speak at the hearing. He apologized, offered letters of
good character, and explained that his English was imperfect.
Osei was determined to have violated the Code of Conduct. At the sanctions
phase of the hearing, Dr. Luehrmann testified to “a pattern of intimidation” by Osei that
included several other faculty members. Osei was suspended until August 15, 2010,
required to attend anger management classes, and put on probation until graduation. Osei
appealed, and the Appellate Board unanimously affirmed. Having exhausted his claims
at the University level, Osei filed suit in the Eastern District of Pennsylvania, alleging,
among other claims, a denial of procedural due process.
3
After allowing Osei to file an Amended Complaint, the District Court dismissed
his federal claims and declined to exercise supplemental jurisdiction over his remaining
state claims. Osei v. Temple Univ. of Commonwealth Sys. of Higher Educ., No. 10-2042,
2011 WL 4549609 (E.D. Pa. Sept. 30, 2011).
II.
The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We
have jurisdiction under 28 U.S.C. § 1291.
We exercise plenary review over a district court‟s dismissal under Federal Rule of
Civil Procedure 12(b)(6). Byers v. Intuit, Inc., 600 F.3d 286, 291 (3d Cir. 2010).
Although we accept all factual allegations as true and construe the complaint in the light
most favorable to the plaintiff, McTernan v. City of York, 577 F.3d 521, 526 (3d Cir.
2009), “a complaint must do more than allege the plaintiff‟s entitlement to relief.”
Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Instead, it must allege
facts “sufficient to show that the plaintiff has a „plausible claim for relief.‟” Id. (quoting
Ashcroft v. Iqbal, 129 S.Ct. 1937, 1950 (2009).
III.
Procedural due process requires school authorities to provide students facing
temporary suspensions with “rudimentary precautions against unfair or mistaken findings
of misconduct and arbitrary exclusion from school.” Goss v. Lopez, 419 U.S. 565, 581
(1975). This includes “notice of the charges,” “an explanation of the evidence” against
the student, and “an opportunity to present his side of the story.” Id. Goss specifically
applied to suspensions of ten days or fewer. Id. Nonetheless, what is required of due
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process is generally a function of: (1) “the private interest that will be affected by the
official action”; (2) “the risk of an erroneous deprivation of such interest through the
procedures used” and “the probable value, if any, of additional or substitute procedural
safeguards”; and (3) “the Government‟s interest, including the function involved and the
fiscal and administrative burdens that the additional or substitute procedural requirement
would entail.” Mathews v. Eldridge, 424 U.S. 319, 335 (1976); see also Doe ex rel. Doe
v. Todd Cnty. Sch. Dist., 625 F.3d 459, 462–63 (8th Cir. 2010) (noting that federal
appellate courts have applied Mathews to determine what process is due beyond a ten-day
suspension).
Pursuant to these factors, we agree with the District Court that Osei was afforded
procedural due process on the face of his Amended Complaint. Although he was only
given one day‟s notice that Dr. Luehrmann was scheduled to testify at his hearing, this
was sufficient notice given the context, and there is no allegation that Osei objected at the
time of the hearing or sought a continuance. Similarly, because the Notice of
Disciplinary Action specifically referenced Osei‟s threatening e-mails, there was no lack
of notice that all his e-mail correspondence with Dr. Krow might be considered. Finally,
in light of these e-mails, we are not persuaded by Osei‟s argument that he was deprived
of the opportunity to confront Dr. Krow. To the extent Osei was charged with threats and
intimidation, the emails spoke for themselves and he was given ample opportunity to
clarify what he meant to communicate.
We are also not persuaded that references by witnesses to prior incidents of
alleged intimidation support a claim for a procedural due process violation. Goss
5
requires that a student receive notice of the charges and an opportunity to explain his side
of the story. There is no allegation that Osei was denied the opportunity to challenge the
witnesses‟ testimony or was unable to explain his side of any allegations against him.
Finally, to any extent hearsay was permitted at Osei‟s hearing, the school did not have to
abide by the same evidentiary standards as one would in a courtroom. See Newsome v.
Batavia Local Sch. Dist., 842 F.2d 920, 926 (6th Cir. 1988) (citation omitted) (addressing
long-term suspensions under Mathews and endorsing the view that school disciplinary
hearings need not adhere to common law rules of evidence).
Thus, even accepting the allegations in Osei‟s Amended Complaint as true, he has
not pled sufficient facts to show a plausible procedural due process violation. The
District Court correctly dismissed this claim, and we affirm.
6