KOSTIN v. BUCKS COMMUNITY COLLEGE

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AIA KOSTIN, CIVIL ACTION

Plaintiff,

NO. 21-850-KSM

v.

BUCKS COMMUNITY COLLEGE

(NURSING DEPARTMENT), et al.,

Defendants.

MEMORANDUM

MARSTON, J. March 30, 2022

Pro se Plaintiff Aia Kostin sues Defendants Bucks County Community College

(“BCCC”), and two BCCC employees, Dr. Constance Corrigan (Dean of BCCC’s Department of

Health Sciences) and Mary Dura (a professor in BCCC’s Nursing Department) (collectively,

“Defendants”), after Defendants dismissed her from BCCC’s Nursing Program. (Doc. No. 9.)

Ms. Kostin brings claims for negligence, intentional infliction of emotional distress (“IIED”),

and breach of contract under state law. (Id.) She also alleges that Defendants violated her

constitutional rights, asserting procedural and substantive due process claims, a freedom of

speech retaliation claim, and an equal protection claim. (Id.)

Defendants filed a motion to dismiss, arguing that this Court lacks subject matter

jurisdiction under Federal Rule of Civil Procedure 12(b)(1) because Ms. Kostin fails to state any

claim arising under federal law. (Doc. No. 11.) In the alternative, Defendants contend that Ms.

Kostin’s state law claims are barred by the statute of limitations, that Ms. Kostin failed to

exhaust her administrative remedies, and that Defendants have governmental immunity under the

Pennsylvania Political Subdivision Tort Claims Act (“PSTCA”). (Id.) Ms. Kostin opposes the

motion. (Doc. No. 12.)

For the reasons discussed below, the Court grants in part and denies in part the motion.

I. Factual Background

Accepting all of Ms. Kostin’s allegations as true, the relevant facts are as follows.

A. Ms. Kostin Struggles to Enroll in BCCC’s Nursing Program

In the fall of 2009, Ms. Kostin enrolled in BCCC. (Doc. No. 9 at ¶ 6.) Although Ms.

Kostin had earned college credits at other educational institutions, she had to retake certain

prerequisite courses to be eligible for BCCC’s Nursing Program requirements. (Id.) Her

“Nursing Program Application was denied for several years with no legitimate reason for the

denials,” despite the fact that she had completed all the prerequisites before applying to the

program. (Id. at ¶¶ 7–11.) Ms. Kostin’s inquiries about why her application was denied went

unanswered. (Id.) After these denials, Ms. Kostin explained to the Nursing Program in 2017

that she did not need to stay enrolled at BCCC, as she had taken all the required classes; in

response, she was told “to take yoga” and stay enrolled in the school, as it was prerequisite to

apply for the Nursing Program, and that she should apply again for the Nursing Program the

following year. (Id. at ¶¶ 11–12.)

Ms. Kostin spoke to the then-head of the BCCC Nursing Program, Professor Keane,

about her financial situation and her need for a nursing degree. (Id. at ¶ 13.) “Professor Keane

told [Ms. Kostin] that she [could] do anything else, but NOT nursing.” (Id. at ¶ 14.) Dissatisfied

with this response, Ms. Kostin contacted the President of BCCC’s office to question the denial of

her nursing application. (Id. at ¶ 15.) After escalating the matter to the President’s Office, Ms.

Kostin was admitted to the BCCC Nursing Program at some point in 2017. (Id. at ¶ 16; see also

id. at ¶ 17 (“It took Plaintiff eight (8) years of course work and involvement by the President’s

Office to get accepted to the BCCC Nursing Program.”).)

B. Ms. Kostin Has a Negative Experience During a Clinical in Her Final Semester

In 2019, Ms. Kostin started Level 4 of the BCCC Nursing Program, which was the final

semester of the two-year nursing degree program. (Id. at ¶¶ 18, 20.) February 13 was Ms.

Kostin’s second day in clinicals, and Professor Dura was the clinical instructor. (Id. at ¶ 20.)

That day, Ms. Kostin was responsible for taking care of two patients, Patient A and Patient B.

(Id. at ¶ 21.) Ms. Kostin “gave bed baths to both patients [and] assisted with all activities

including personal hygiene, bedsheet replacement, feeding, etc.” (Id.; see also id. at ¶ 24

(explaining that “Patient B . . . required full assistance” and that she “changed patient B’s diaper,

gown, bedsheets twice that contained fecal matter”).)

Although Ms. Kostin bathed Patient A on two occasions, Patient A refused to have his

diaper changed. (Id. at ¶¶ 21, 23, 40.) According to Ms. Kostin, she confirmed that Patient A’s

diaper was not soiled and then informed Professor Dura that Patient A requested that his diaper

change be postponed. (Id. at ¶¶ 21–23, 40.) Ms. Kostin believed that changing Patient A’s

diaper against his wishes would constitute a violation of his rights, and she communicated this

position to Professor Dura. (Id. at ¶ 22; see also id. at ¶ 39 (citing to the Pennsylvania Patient

Bill of Rights, 28 Pa. Code § 103.22); id. at ¶ 40 (“The Patient made it clear to Plaintiff that he

didn’t want to get his diaper changed at the moment . . . The plaintiff reported to instructor Dura

and made it clear that she will not force herself on a patient against his will”).)

At the end of the day, Ms. Kostin turned in her nursing notes.1 (Id. at ¶ 24.)

1 On February 25 and 26—after Ms. Kostin was dismissed from BCCC’s Nursing Program, as discussed

infra—Kostin requested her graded nursing notes. (Doc. No. 9 at ¶¶ 24, 49; Doc. No. 9-2 at 3–4 (Exs.

3A, 3B), 20–21 (Exs. 17A, 17B).) On February 26, Dr. Corrigan responded, “I checked with Ms. Dura

and she says that you did not turn in your nursing note[s] for grading.” (Doc. No. 9-2 at 5 (Ex. 3C), 22

(Ex. 17C).) Kostin alleges that Defendants intentionally concealed her nursing notes. (Id. at ¶¶ 25, 50.)

Four days later, on February 17, Ms. Kostin contacted the BCCC Nursing Department

about the negative encounters she had with Professor Dura during the February 13 clinical.2 (Id.

at ¶ 25.) She also requested to be placed with a different instructor for the remaining four days

of clinicals. (Id.; see also Doc. No. 1-1 at 8 (“I am asking the Nursing Department to address

this matter immediately and place me with a different instructor at a different hospital for the

remainder of the hospital clinicals.”).) On February 19, she followed up, requesting an update,

as she had another clinical scheduled for the following day, an upcoming exam, and had not yet

received a response. (See Doc. No. 9-2 at 6 (Ex. 4) (“This is my third email to you. As you

know this is a serious matter for me especially given that I have a clinical coming up tomorrow,

February 20th and an exam on Feb 25th.”).)

C. Ms. Kostin Is Dismissed from BCCC’s Nursing Program

The next day, February 20, Dr. Corrigan reached out to Ms. Kostin to schedule a meeting

for the following day to discuss Ms. Kostin’s “letter and clinical experiences.” (Doc. No. 9 at ¶

26; Doc. No. 9-2 at 7 (Ex. 5).) On February 21, Ms. Kostin, Ms. Kostin’s mother,3 Dr. Corrigan,

and other Nursing Program instructors (Professors Murt and Robbins) attended the meeting.

(Doc. No. 9 at ¶¶ 27–29.) During the meeting, Ms. Kostin’s concerns “were not addressed at

all,” and “there was no opportunity for [her] to describe what happened [during the February 13

clinical], or present her side of the story.” (Id. at ¶ 30.) Rather, Dr. Corrigan informed Ms.

2 Ms. Kostin did not attach this email to her amended complaint. (See generally Doc. Nos. 9, 9-2, 9-3.)

The Court notes that Ms. Kostin attached an undated letter to her initial complaint addressed to Professor

Robbins which included a number of details regarding her negative encounters with Professor Dura,

including related to the clinical on February 13. (See Doc. No. 1-1 at 1–8.) The Court is uncertain if this

letter is the same as the email referenced by Ms. Kostin in her amended complaint.

3 Ms. Kostin alleges that Dr. Corrigan attempted to prevent Ms. Kostin’s mother from attending the

meeting, by warning the mother that “she had a number of disparaging things to say about [Ms. Kostin]

that might be upsetting to [the] mother.” (Doc. No. 9 at ¶¶ 27–29.)

Kostin that she “did not like the tone of [Ms. Kostin’s] letter” and handed Ms. Kostin a pre-

written Letter of Dismissal, dismissing Ms. Kostin from the Nursing Program. (Id. at ¶¶ 31–32;

see also Doc. No. 9-2 at 8–9 (Exs. 6A, 6B).) During the meeting, Dr. Corrigan also referenced

an incident report allegedly on file at the hospital, but according to Ms. Kostin, no such report

exists. (Doc. No. 9 at ¶¶ 58–59.)4

In the dismissal letter, Dr. Corrigan stated that on February 13, Ms. Kostin received an

unsatisfactory rating during her clinical with Professor Dura and explained that she “undertook

an investigation” because Ms. Kostin claimed that Professor Dura “performed in a manner

threatening to [Ms. Kostin] and in a discriminatory manner.” (Doc. No. 9-2 at 8–9 (Ex. 6A).)

After speaking with “[Ms. Kostin’s] primary nurse” and other students under Professor Dura’s

supervision, Dr. Corrigan concluded that Ms. Kostin’s claims were unfounded. (Id. (“I cannot

find any information that supports your claims.”).)

Separately, after reviewing materials from Professor Dura and the primary nurse about

the clinical on February 13, Dr. Corrigan concluded that Ms. Kostin had violated the Integrity

Policy in the Nursing Student Handbook, “which prohibits lying and unprofessional behaviors.”

(Id.) Dr. Corrigan cited the Nursing Student Handbook, which states:

V: Clinical: Students may not falsify or knowingly make incorrect

entries in the patient’s record or other related documents.5 This

4 Ms. Kostin alleges that she asked to see the incident report but “was told that ‘it’s private information’

that [could] not be shared with [her].” (Id. at ¶ 58.) When Ms. Kostin stated that she would ask the

hospital for a copy of the incident report, Dr. Corrigan grew angry and told her, “You’re not allowed to do

that.” (Id.) And, when Ms. Kostin and her mother drove to the hospital after the meeting to inquire about

the incident report, “[t]he hospital staff verified that NO incident report exists.” (Id. at ¶ 59; see also id.

(on May 18, 2021, the hospital again informed Ms. Kostin “that the incident report does NOT exist”).)

5 Ms. Kostin alleges that this provision does not apply to her—even though it was in the Nursing Student

Handbook—because she is a student and because she did not have access to patient records. (See Doc.

No. 9 at ¶ 29 (“Plaintiff researched this statement and it was taken out of the Law 1.18 Standard of

Nursing Conduct. The Plaintiff contacted the Pennsylvania Code & Bulletin in Harrisburg Pa and

verified that this LAW applied to registered nurses only, NOT students.”); see also id. (“Plaintiff never

entered incorrect information in patients [sic] records or other documents. Student nurse [sic] cannot

standard of behavior applies to making verbal or written reports to

an instructor that are not true, such as but not limited to reporting to

an instructor a task is completed when it has not actually been

accomplished, performing a task without Instructor approval,

withholding patient information from the instructor, or using patient

data for a paper from the past.

(Id.) Dr. Corrigan concluded that Ms. Kostin’s conduct on February 13 constituted a violation of

this policy. (See id.) Dr. Corrigan elaborated:

Unfortunately, upon review of the material from Professor Dura and

your primary nurse it has come to the department’s attention that

you performed in an unprofessional and unsafe manner. Most

specifically, you were to be caring for an incontinent patient and

were to be ensuring the patient remained on dry bedding by

changing the incontinence pads and adult diapers. This was not

done even though you reported to both your primary nurse and your

professor that it was done. The primary nurse found the patient in a

pool of urine and it was clear that in the 6 hours you were caring for

the patient (7 AM-1 PM)6 you had not actually changed the

incontinence materials. This resulted in an incident report being

filed with the hospital. This is not the only instance that your

instructor and the primary nurse were concerned with.

(Id.)

Then, Dr. Corrigan explained that because Ms. Kostin had violated the Integrity Policy,

she was “being dismissed from the nursing program.” (Id. at 9 (Ex. 6B).) Ms. Kostin remained

a BCCC student and was permitted to continue “to take any classes other than those in the

nursing program.” 7 (Id.) Dr. Corrigan informed Ms. Kostin that if she wanted to reattempt

enter information to patients [sic] records simply because student [sic] don’t have access to it.”).)

6 As to this allegation in Dr. Corrigan’s letter, Ms. Kostin writes: “The patient had a hospital nurse that

was supposed to perform her duties independent of the Plaintiff . . . Student’s Hospital Staff cannot

supervise a student; it is the responsibility of the clinical faculty member.” (Doc. No. 9 at ¶¶ 60–61; see

also id. at ¶ 62 (“According to the allegation by the school the patient was sitting in a diaper full of urine

from 7AM to 1PM—where was his hospital Nurse? She never checked on her patient during the 6 hour

time frame? It is clearly stated in the rules that the hospital nurse is Not [sic] to supervise a student.”).)

7 At the time of her dismissal, Ms. Kostin had “achieved a total of 132 College Credits which is more

than a Bachelor’s Degree (12) credits, while the BCCC Associate Degree in Nursing Program only

Nursing Level 4, “the next offering [would be] January 2020.” (Id.) However, to enter the

January 2020 cohort, Ms. Kostin would have to successfully pass a readmission test covering

Nursing Level 3 course material, which would be offered in December 2019, and she would have

to repeat all of her background screens and other clinical paperwork. (Id.) In addition, Ms.

Kostin’s Nursing Program requirements would have to reflect the new January 2020 start date.

(Id. (“Any courses that require a ‘B’ or which must be completed within 7 years of admission

must be in an academic progression state by the beginning of the Spring 2020 semester.”).)

Last, Dr. Corrigan advised Ms. Kostin that she would “receive a formal disciplinary

action through [BCCC’s] tracking system” and that if she wanted to challenge the dismissal, she

could contact the Associate Provost, Dr. Kelleway, to begin the grievance process. (Id.)

D. Ms. Kostin Appeals Her Dismissal

Ms. Kostin appealed her dismissal, twice—first to the Provost and then to the President.

(See Doc. No. 9 at ¶ 52; Doc. No. 9-2 at 24 (Ex. 19A); Doc. No. 9-4 at 1 (Ex. 19B).)

As to Ms. Kostin’s dismissal from the program, BCCC’s Provost Lisa Angelo wrote: “[I]t

is my understanding that you had a problematic day. In addition to other unsatisfactory

performances, the primary nurse informed Professor Dura that you did not perform a task even

though you reported that you had. This type of infraction leaves you subject to dismissal.”

(Doc. No. 9-2 at 14 (Ex. 19A).) The Provost then cited to the the clinical provision of the

Nursing Student Handbook as the basis for Ms. Kostin’s dismissal. (See id. (citing the provision

that prohibits “falsify[ing] or knowingly mak[ing] incorrect entries in the patient’s record or

other related documents”).) After concluding that she “d[id] not find anything to support unfair

treatment in the procedures followed,” the Provost explained that Ms. Kostin could reapply to the

requires 67 Credits to graduate.” (Doc. No. 9 at ¶ 72.)

Nursing Level 4 program in the spring of 2020. (Id.) The Provost also outlined Ms. Kostin’s

other options—she could graduate with her associate’s degree in Health Sciences without taking

additional courses and/or file a tuition appeal for the money she spent on the Spring 2019

semester. (Id. (“I understand your disappointment in the decision to dismiss but I do hope, after

all you’ve invested, you will either take advantage of the degree availability [sic] or reapply to

the program next spring.”).) And as to Ms. Kostin’s complaint of mistreatment by Professor

Dura, the Provost reiterated Dr. Corrigan’s findings—namely, that Ms. Kostin’s charge of

bullying was not upheld, as the students and nurse interviewed “reported no incidents of bullying

either to them nor did anyone observe bullying to you.” (Id.)

Ms. Kostin then appealed to the President of BCCC, Dr. Stephanie Shanblatt. (See Doc.

No. 9-4 at 1 (Ex. 19B).) After “review[ing] all documentation provided by [Ms. Kostin] and

college faculty and staff,” the President upheld Ms. Kostin’s dismissal from the Nursing

Program. (Id.) The President told Ms. Kostin that the decision was based on “the fact that [she]

lied regarding care [she] provided to a patient.” (Id.) “The primary staff nurse informed

Professor Dura that [Ms. Kostin] did not perform a task, even though [she] reported [she] had.

This type of infraction is conduct subject to dismissal.” (Id. (citing the clinical provision of the

Student Nursing Handbook).) The President also upheld Ms. Kostin’s dismissal because Ms.

Kostin’s conduct “violated accepted standards of patient care and was harmful to the patient,”

and “[her] failure to provide adequate care was detrimental to the relationship between [BCCC]

and the clinical site.” (Id.) As to Ms. Kostin’s “complaint of threatening and unprofessional

behavior on the part of” Professor Dura, the President found that the claim lacked merit. (Id.)

E. Defendants Failed to Follow the Appropriate Protocols

Ms. Kostin alleges that Defendants failed to follow the appropriate protocols when

investigating her complaint and dismissing her from the Nursing Program. (Doc. No. 9 at ¶ 33.)

For example, Ms. Kostin claims that she should have been asked to leave her clinical on

February 13 had her instructor and the primary nurse been unsatisfied with her performance.

(See id. (citing the Nursing Student Handbook, “Criteria for Clinical Evaluation,” which

provides that “a student may be asked to leave the clinical area if they are not performing in a

satisfactory/safe, competent, and caring manner, displaying inappropriate behavior or violating

any nursing policy”); Doc. No. 9-2 at 10 (Ex. 7) (same); see also Doc. No. 9 at ¶ 35 (“On

February 13, 2019 . . . Plaintiff completed the entire Clinical Day, Professor Dura never asked

her to leave. If Plaintiff’s behavior was so outrageous and dangerous why didn’t Professor Dura

ask her to leave?”).) Ms. Kostin also asserts that she should have been given the opportunity to

do remediation. (Doc. No. 9 at ¶¶ 36, 47 (citing the Nursing Student Handbook, which provides

that if a student is “dismissed from the clinical practice area for unsafe or unsatisfactory

performance,” “[t]he student must return to the college laboratory, during the scheduled time for

remediation to practice that procedure(s), and demonstrate competence at the expected level”);

Doc. No. 9-2 at 16 (Ex. 13); see also Doc. No. 9 at ¶ 48 (“Plaintiff was denied the opportunity to

return to the college laboratory . . . for remediation. . . . The option of remediation was never

even presented to Plaintiff.”).)8

According to Ms. Kostin, her dismissal was also premature because she had not

“demonstrate[d] a pattern of three unsafe/unsatisfactory occurrences.” (Doc. No. 9 at ¶ 33

(citing Nursing Student Handbook); id. at ¶¶ 34, 43; Doc. No. 9-2 at 11 (Ex. 8); id. at 12 (Ex. 9)

(stating that a student who has “demonstrated a pattern of 3 unsafe/unsatisfactory occurrences . .

. within a course may be dismissed from the program”); id. at 16 (Ex. 13); see also Doc. No. 9 at

8 Ms. Kostin also claims that Defendants failed to follow the Academic Integrity Policy. (See Doc. No. 9

at ¶¶ 65–69 (alleging that under that contrary to the policy, she never received a warning or an Academic

Integrity Reporting Form).)

¶ 42 (“[T]he penalty for a Student Nurse for an infraction during a Clinical Day is to be asked to

leave for the Day . . . The penalty for a single infraction like Plaintiff’s is NOT to be dismissed

from the Program.”).)

Ms. Kostin also takes issue with how Defendants handled the grievance process as it

pertained to her complaint about Professor Dura; she asserts that they deviated from the student

grievance policy set forth in the Nursing Student Handbook. (Doc. No. 9 at ¶¶ 53–55.) The

Associate Degree Nursing Student Grievance Policy provides, “The nursing student has a right to

address an issue or concern if they perceive they have been evaluated or treated in an unfair

manner.” (Doc. No. 9-4 at 2–3 (Exs. 20, 21); see also id. (“A student grievance is described as

an issue and/or concern by the student who feels they have not been evaluated according to

stated criteria or feels they have been the object of inappropriate verbal of physical action by a

member of the nursing program instructional staff.”).) The policy also states that the nursing

student should have “the opportunity to discuss their concerns with the involved faculty member

within five (5) working days of the incident”; then, the Director of the Associate Degree Nursing

program [shall] meet simultaneously with the faculty member and student to resolve the

grievance”; if that process is unsuccessful, then “the student will meet with the faculty member,

the Director [], and the Academic Dean of the Department”; and last, “if a resolution is unable to

be accomplished, the student will be directed to the appropriate college wide committee or the

Provost of Academic Affairs.” (Id.; see also Doc. No. 9 at ¶ 54.) According to Ms. Kostin,

“[n]one of these Protocols were followed in any substantive way.” (Doc. No. 9 at ¶ 55.)

Given Defendants’ failure to follow these procedures, Ms. Kostin claims that her

dismissal from the Nursing Program was retaliatory—in other words, Defendants retaliated

against her for asking to complete the remainder of her clinical days with a different instructor.

(See Doc. No. 9 at ¶ 44 (“According to the Handbook, Dismissal from the Nursing Program,

even after three (3) unsatisfactory occurrences, is not mandatory, but optional. In light of this

Section, how does BCCC justify Plaintiff’s Dismissal for a single ‘unsatisfactory occurrence’?

The College obviously retaliated against Plaintiff for the email she wrote on February 17, 2019,

asking for an Instructor other than Professor Dura, for the remainder of her Clinical Rotation

Days, essentially asking for help to be treated respectfully and complete the Program.”); see also

id. at ¶ 57 (“Rather than help Plaintiff, they punished her.”); id. at ¶ 71 (“Rather than follow

School Protocols, BCCC protected its staff, and punished Plaintiff in a severe way for

complaining about Professor Dura.”).)

II. Defendants’ Motion to Dismiss

Defendants argue that Ms. Kostin’s amended complaint must be dismissed under Rule

12(b)(1) for lack of subject matter jurisdiction and Rule 12(b)(6) for failure to state a claim.

First, Defendants contend that Ms. Kostin’s federal claims, arising under § 1983 and the United

States Constitution, are “immaterial and made solely for the purpose of obtaining jurisdiction,

[and]/or [are] wholly insubstantial and frivolous.” (See Doc. No. 11 at 6 (citation omitted).)

Accordingly, Defendants argue “the entire case should be dismissed as not involving any federal

controversy, which deprives this Court of any subject matter jurisdiction.” Strader v. U.S. Bank

Nat’l Ass’n, Civil Action No. 2:17-cv-684, 2018 WL 741425, at *5 (W.D. Pa. Feb. 7, 2018)).)

(See Doc. No. 11 at 6–8.) Second, to the extent the amended complaint states a federal

controversy, Defendants argue that the federal and state claims fail to state a claim under the

Rule 12(b)(6) standard, that they are entitled to governmental immunity for Ms. Kostin’s state

law claims, that Ms. Kostin did not exhaust her administrative remedies as to her state law

claims, and that Ms. Kostin’s state law claims are time barred. (Doc. No. 11.) Ms. Kostin

opposes the motion. (Doc. No. 12.)

III. Discussion

A. Subject Matter Jurisdiction Under Rule 12(b)(1)

1. Legal Standard

“Rule 12(b)(1) governs jurisdictional challenges to a complaint.” Williams v. Litton Loan

Servicing, Civil Action No. 16-5301(ES)(JAD), 2018 WL 6600097, at *5 (D.N.J. Dec. 17,

2018). “The Court can adjudicate a dispute only if it has subject-matter jurisdiction to hear the

asserted claims.” Id. (quotation marks omitted).

“A Rule 12(b)(1) motion may be treated as either a facial or factual challenge to the

court’s subject matter jurisdiction.” Gould Elecs. Inc. v. United States, 220 F.3d 169, 176 (3rd

Cir. 2000). A facial attack “contests the sufficiency of the complaint because of a defect on its

face,” and the Court considers only the “allegations in the complaint, along with documents

referenced therein, in the light most favorable to the nonmoving party.” Williams, 2018 WL

6600097, at *5 (quotation marks omitted); see also Constitution Party of Pa. v. Aichele, 757 F.3d

347, 358 (3d Cir. 2014) (explaining that a “facial attack” “is an argument that considers a claim

on its face and asserts that it is insufficient to invoke the subject matter jurisdiction of the court

because, for example, it does not present a question of federal law”). In contrast, a factual attack

“concerns the actual failure of a plaintiff’s claims to comport factually with jurisdictional

prerequisites.” Constitution Party of Pa., 757 F.3d at 358 (cleaned up); see also id. (“A factual

attack, on the other hand, is an argument that there is no subject matter jurisdiction because the

facts of the case . . . do not support the asserted jurisdiction.”).

As a threshold matter, the Court must first determine whether Defendants present a

factual or facial challenge to the amended complaint, as that impacts the standard of review.9

See id. at 357 (“A district court has to first determine, however, whether a Rule 12(b)(1) motion

presents a facial attack or a factual attack . . . because that distinction determines how the

pleading must be reviewed.”); H&H Disposal Servs., Inc. v. U.S. Envtl. Prot. Agency, Civil

Action No. 18-4467, 2019 WL 3777609, at *3 (E.D. Pa. Aug. 12, 2019) (same). Although

Defendants do not describe their attack as facial or factual, we construe their argument as a facial

attack because they present a legal dispute as opposed to a factual one. See Constitution Party of

Pa., 757 F.3d at 358 (“A factual attack requires a factual dispute, and there is none here.”).

When Defendants present a facial attack on a 12(b)(1) motion, courts in this Circuit

“apply the same standard as on a review of a Rule 12(b)(6) motion for failure to state a claim.”

Kemerer v. Hilliard, 2:18-cv-374, 2018 WL 3448153, at *2 (W.D. Pa. July 17, 2018); see also

Constitution Party of Pa., 757 F.3d at 358 (“[A] facial attack calls for a district court to apply the

same standard of review it would use in considering a motion to dismiss under Rule 12(b)(6),

i.e., construing the alleged facts in favor of the nonmoving party.”); Petruska v. Gannon Univ.,

462 F.3d 294, 302 n.3 (3d Cir. 2006) (“When considering a facial attack, the Court must consider

the allegations of the complaint as true, and in that respect such a Rule 12(b)(1) motion is similar

to a Rule 12(b)(6) motion.”); H&H Disposal Servs., 2019 WL 3777609, at *3 (“In deciding a

9 The Third Circuit has “repeatedly cautioned” against conflating a subject matter jurisdiction challenge

under Rule 12(b)(1) with a merits-based challenge under Rule 12(b)(6). Davis v. Wells Fargo, 824 F.3d

333, 348 (3d Cir. 2016). “The Supreme Court has authorized courts to dismiss under Rule 12(b)(1) for

lack of jurisdiction due to merits-related defects in only narrow categories of cases.” Id. at 349–50. “A

suit may be sometimes dismissed for want of jurisdiction where the alleged claim under the Constitution

or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining

jurisdiction or where such a claim is wholly insubstantial.’” Bell v. Hood, 327 U.S. 679, 682–83 (1946).

“Dismissal for lack of jurisdiction is not appropriate merely because the legal theory alleged is probably

false, but only because the right claimed is so insubstantial, implausible, foreclosed by prior decisions of

this Court, or otherwise completely devoid of merit as not to involve a federal controversy.” Davis, 824

F.3d at 350 (cleaned up).

facial attack, district courts apply the same standard of review [they] would use in considering a

motion to dismiss under . . . Rule 12(b)(6).”). Thus, we consider “the allegations of the

complaint and documents referenced therein and attached thereto, in the light most favorable to

the plaintiff.” Constitution Party of Pa., 757 F.3d at 358; see also Myers v. Caliber Home

Loans, Seterus, Inc., 1:19-cv-596, 2019 WL 4393377, at *3 (M.D. Pa. Sept. 13, 2019).

2. Analysis

In this case, Ms. Kostin’s federal claims are not wholly immaterial or frivolous to warrant

a dismissal for lack of subject jurisdiction for merits-related defects.

For the reasons discussed infra, Section II.B.2, the Court finds that Ms. Kostin has stated

a procedural due process claim and a free speech retaliation claim. As such, two of Ms.

Kostins’s claims arise under federal law. Accordingly, Defendants’ motion to dismiss the

complaint for lack of subject matter jurisdiction is denied.

B. Failure to State a Claim Under Rule 12(b)(6)

1. Legal 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) (quotation marks omitted). “A claim has facial plausibility when the

plaintiff pleads factual content that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.” Id. “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.” Id. “Factual allegations must be enough to raise a right to relief above the

speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

When reviewing a motion to dismiss, courts “must accept the allegations in the complaint

as true, but are not compelled to accept unsupported conclusions and unwarranted inferences, or

a legal conclusion couched as a factual allegation.” Castleberry v. STI Grp., 863 F.3d 259, 263

(3d Cir. 2017) (quotation marks omitted). “As a general matter, a district court ruling on a

motion to dismiss may not consider matters extraneous to the pleadings.” In re Burlington Coat

Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). “However an exception to the general

rule is that a document integral to or explicitly relied upon in the complaint may be considered

without converting the motion to dismiss into one for summary judgment.” Id. (quotation marks

omitted and alterations accepted). The court may also consider “matters of public record, orders,

exhibits attached to the complaint and items appearing in the record of the case.” Keystone

Redevelopment Partners, LLC v. Decker, 631 F.3d 89, 95 (3d Cir. 2011) (quotation marks

omitted).

“While a plaintiff’s factual allegations must be enough to raise a right to relief above a

speculative level, complaints filed pro se must be liberally construed.” Muchler v. Greenwald,

624 F. App’x 794, 797 (3d Cir. 2015) (cleaned up); see also Smith v. Shop Rite, Civil Action No.

3:17-cv-0907, 2018 WL 2424136, at *2 (M.D. Pa. May 9, 2018) (noting that although “[a]

complaint by a pro se litigant is to be liberally construed,” “pro se litigants still must allege

sufficient facts in their complaint to support a claim” (cleaned up)); Strader, 2018 WL 741425,

at *5 n.8 (W.D. Pa. Feb. 7, 2018) (“It is true that pro se plaintiffs are not held to the same

standard as lawyers when the Court analyzes formal pleadings, but any pleading must still

contain sufficient factual allegations that, when accepted as true, state a claim to relief that is

plausible on its face.” (cleaned up)).

2. Analysis

a. Constitutional Claims

Ms. Kostin asserts procedural due process, substantive due process, free speech

retaliation, and equal protection claims against Defendants, alleging violations of the First, Fifth,

and Fourteenth Amendments.10 (Doc. No. 9.) We address each claim in turn.

i. Procedural Due Process

Ms. Kostin brings a procedural due process claim, alleging that she was denied “her

Property Interest in her Nursing Education” and an opportunity to be heard. (See, e.g., Doc. No.

9 at ¶¶ 30, 55, 82.) Defendants move to dismiss this claim, arguing that “Plaintiff has woefully

failed to allege that Defendants deprived her of a constitutionally protected interest, or that she

was deprived of such interest without due process.” (Doc. No. 11 at 7.) The Court disagrees.

The Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty or process without due process of law.” U.S. Const. amend. XIV. “To prevail on a

procedural process claim, a litigant must show (1) that the state deprived him of a protected

interest in life, liberty, or property and (2) that the deprivation occurred without due process of

law.” Elansari v. United States, 823 F. App’x 107, 112 (3d Cir. 2020) (quoting Burns v. Pa.

Dep’t of Corr., 544 F.3d 279, 285 (3d Cir. 2008)). “The essence of a procedural due process

claim, of course, is notice and an opportunity to be heard.” Kadakia v. Rutgers, 633 F. App’x

83, 88 (3d Cir. 2015).

10 Although Ms. Kostin does not explicitly reference 42 U.S.C. § 1983, viewing the facts in the light most

favorable to her, she brings her constitutional claims under § 1983. See Cohn v. Pa. State Univ., Civil

Action No. 19-2857, 2020 WL 738496, at *4 (E.D. Pa. Feb. 12, 2020) (explaining that pro se pleadings

“must be liberally construed” and that courts must “apply the applicable law, irrespective of whether the

pro se litigant has mentioned it by name” (cleaned up)); see also Guiseppe v. McFadden, Civil Action No.

17-4880, 2018 WL 1251734, at *5 (E.D. Pa. Mar. 12, 2018) (“Section 1983 provides private citizens with

a means to redress violations of federal law committed by state individuals.” (cleaned up)).

As a threshold matter, the Court finds that Ms. Kostin had a property interest in her

continued education in BCCC’s Nursing Program. See, e.g., Simms v. Pa. State Univ.—Altoona,

Case No. 3:17-cv-201, 2018 WL 1413098, at *4 (W.D. Pa. Mar. 20, 2018) (“Courts in the Third

Circuit have held that undergraduate and graduate students have a legally protected property

interest in continuing their educations. Accordingly, the Court finds that Simms’ [sic] has a

legally protected property interest in continuing her education.”); Borrell v. Bloomsburg Univ.,

955 F. Supp. 2d 390, 402 (M.D. Pa. 2013) (“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 studies . . . Consistent with this authority, [the plaintiff] had a

property interest in her continued participation in the Nurse Anesthesia Program.”); Abernathy v.

Indiana Univ. of Pa., Civil Action No. 2:12-cv-1119, 2013 WL 3200519, at *1 (W.D. Pa. June

18, 2013) (“In multiple instances courts in this Circuit have held, or at least assumed, that

students of state institutions have a property interest in that higher education that is protected by

minimum standards of the Fourteenth Amendment due process.”) (collecting cases). And Ms.

Kostin plausibly alleges that BCCC deprived her of that property interest when it dismissed her

from the Nursing Program.

Next, the Court must consider whether the deprivation occurred without due process of

law. To do so, however, the Court must first determine whether Ms. Kostin’s dismissal from the

Nursing Program was academic or disciplinary in nature “because the distinction has

implications for the process due before a student can be [dismissed].” Valentine v. Lock Haven

Univ. of Pa. of the State Sys. of Higher Ed., No. 4:13-cv-00523, 2014 WL 3508257, at *7 (M.D.

Pa. July 14, 2014); see also Board of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 86, 90

(1978) (explaining that there are “far less stringent procedural requirements in the case of an

academic dismissal” and noting that “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”). “When a student

is discharged for academic, as opposed to disciplinary, reasons, all that is required to satisfy

procedural due process is ‘an informal faculty evaluation with the student.’” Kadakia, 633 F.

App’x at 88; see also Manning v. Temple Univ., 157 F. App’x 509, 515 (3d Cir. 2005) (same).

In contrast, a student dismissed for disciplinary reasons is entitled to more process. For example,

when a student is faced with temporary suspension, “procedural due process requires [the] school

authorities to provide [the student] . . . with ‘rudimentary precautions against unfair or mistaken

findings of misconduct and arbitrary exclusion from school,’” which would include “‘notice of

the charges,’ ‘an explanation of the evidence’ against the student, and ‘an opportunity [for the

student] to present his side of the story.’” Osei v. Temple Univ., 518 F. App’x 86, 88 (3d Cir.

2013) (quoting Goss v. Lopez, 419 U.S. 565, 581 (1975)). At bottom, “what is required of due

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.’” Osei, 518 F. App’x at 88

(quoting Matthews v. Eldridge, 424 U.S. 319, 335 (1976)).

Ms. Kostin does not specify whether she was dismissed for academic or disciplinary

reasons. However, viewing the allegations in the amended complaint in the light most favorable

to her, the Court concludes that Ms. Kostin adequately pleads that she was dismissed from

BCCC’s Nursing Program for disciplinary, non-academic reasons without sufficient process.

She does not allege that she was dismissed due to poor grades but rather for lying and violating

the nursing Integrity Policy. (See, e.g., Doc. No. 9 at ¶ 51; Doc. No. 9-2 at 8 (Ex. 6A); see also

id. at 9 (Ex. 6B) (dismissal letter, noting that Ms. Kostin “will receive a formal disciplinary

action through the College’s tracking system”).) Based on the allegations in the amended

complaint, Ms. Kostin first received notice of the charges levied against her during the meeting

in which she was dismissed and was handed a pre-written dismissal letter. (See Doc. No. 9 at ¶¶

30–32.) And, most significantly, Ms. Kostin pleads that she did not have an opportunity to tell

“her side of the story.” (See Doc. No. 9 at ¶ 30 (“It seemed to Plaintiff that the meeting was a

mere formality, as there was no opportunity for Plaintiff to describe what happened on February

13, 2019, or present her side of the story.”).) See Abernathy, 2013 WL 3200519, at *2 (denying

motion to dismiss procedural due process claim and finding that the plaintiff plausibly alleged

that he was deprived of his continuing education without “a meaningful opportunity to be heard,”

where the plaintiff “allege[d] that the only opportunity he had to respond to the charges against

him was in the form of an ‘appeal letter,’11 with no other chance to be heard”). Contra Osei, 518

F. App’x at 89 (“Goss 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.”). Therefore, Ms. Kostin plausibly alleges that she did not receive adequate notice or an

opportunity to be heard.

Further, even if the dismissal were for academic reasons, Ms. Kostin has also sufficiently

11 Likewise, the Court finds Defendants’ argument that Ms. Kostin fails to state a procedural due process

claim because “there is no allegation that [she] was precluded from being able to pursue her appellate

rights administratively” is unavailing at this stage of the litigation. (See Doc. No. 11 at 7.) See, e.g.,

Abernathy, 2013 WL 3200519, at *2; Valentine, 2014 WL 3508257, at *7 (“[T]he University’s appeals

process is no substitute for adequate pre-dismissal procedures.”).

pleaded that she was not given due process, “as the facts as alleged by [Ms. Kostin] sufficiently

state that she was denied an informal faculty evaluation before she was [dismissed].” See

Borrell, 955 F. Supp. 2d at 403.

For these reasons, the Court denies Defendants’ motion to dismiss Ms. Kostin’s

procedural due process claim as against Defendants BCCC and Dr. Corrigan.12

ii. Substantive Due Process

Ms. Kostin alleges that Defendants denied her of substantive due process when they

dismissed her and asserts that she had a fundamental right to a nursing education. (Doc. No. 9 at

¶ 81 (“All Defendants, acting under Color of Law, deprived Plaintiff of her Fundamental Rights

guaranteed by the Constitution . . . , including her Liberty Interest in her Nursing Education”).)

“Not all property interests worthy of procedural due process protection are protected by

the concept of substantive due process.” Nicholas v. Pa. State Univ., 227 F.3d 133, 140 (3d Cir.

2000) (cleaned up). “Rather, to state a substantive due process claim, a plaintiff must have been

deprived of a particular quality of property interest.” Id. (cleaned up). “[W]hether a certain

property interest embodies this ‘particular quality’ . . . depends on whether that interest is

‘fundamental’ under the United States Constitution.” Id. Ultimately, “[t]o prevail on a

substantive due process claim, a plaintiff must show that she was deprived of a fundamental right

through an arbitrary and deliberate abuse of authority.” Elansari, 82 F.3d at 112.

The Court finds that Ms. Kostin has failed to allege that there is a fundamental right to

continued enrollment in the Nursing Program. See Simms, 2018 WL 1413098, at *9 (“Simms

12 The Court notes that Ms. Kostin fails to allege that Professor Dura had any involvement in the decision

to dismiss her. For that matter, Ms. Kostin explicitly avers that Professor Dura was not present at the

meeting in which she was dismissed. (Doc. No. 9 at ¶ 29.) Because Ms. Kostin does not allege that

Professor Dura was involved in the deprivation of her property interest, the procedural due process claim

must be dismissed as to Defendant Dura.

failed to state a substantive due process claim. Simms’ interest in pursuing her college education

differs greatly from the rights in which federal courts have found to be fundamental in the

Constitutional sense. Simms did not cite of a single case establishing that students have a

fundamental right to a college education, and this Court is aware of none.”); Norris v.

Montgomery Cty. Cmty. Coll., Civil Action No. 15-4741, 2016 WL 2646733, at *4 (E.D. Pa.

May 9, 2016) (“[G]iven the Supreme Court’s reluctance to expand the concept of due process

and that the Third Circuit has so far limited non-legislative substantive due process review to

cases involving real property ownership, the Court holds that there is no fundamental right to

continued college enrollment. Plaintiff has therefore failed to state a claim for violation of

substantive due process.” (cleaned up)); see also Collick v. William Paterson Univ., Civ. No. 16-

471 (KM) (JBC), 2016 WL 6824374, at *16–17 (D.N.J. Nov. 17, 2016), aff’d in part &

remanded in part on other grounds, 699 F. App’x 129 (granting motion to dismiss substantive

due process claim and finding that there is no fundamental right to an education, where the

plaintiffs were expelled); Valentine, 2014 WL 3508257, at *5–6 (granting motion to dismiss

substantive due process claims and rejecting the plaintiff’s position that substantive due process

protection applied to her property interest in “tuition payments and education opportunity”).13

Accordingly, the Court grants Defendants’ motion to dismiss Ms. Kostin’s substantive

due process claim.

13 Accord Mauriello v. Univ. of Med. & Dentistry, 781 F.2d 46, 52 (3d Cir. 1986) (expressing “doubt

about the existence” of a substantive due process right in continued enrollment in university’s graduate

program); Kadakia, 633 F. App’x at 87 (“Kadakia provides no principled basis to assuage this Court’s

‘doubt,’ in Mauriello’s word, as to the existence of a substantive due process right” in continued

enrollment in a graduate program).

iii. Free Speech Retaliation14

Next, Ms. Kostin asserts a free speech retaliation claim under the First Amendment,

alleging that “she was dismissed from the BCCC Nursing Program in Retaliation for exercising

her Constitutionally Protected Right to complain about the abusive treatment she had received

from Professor Dura.” (Doc. No. 9 at ¶ 82.)

To state First Amendment retaliation claim, a plaintiff must show that (1) she “engaged

in constitutionally protected conduct, (2) the defendant engaged in retaliatory action sufficient to

deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link

existed between the constitutionally protected conduct and the retaliatory action.” Baloga v.

Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (cleaned up); see also Ambrose v. Del.

State Univ., Civil Action No. 21-416, 2021 WL 3568373, at *5 (D. Del. Aug. 12, 2021).

First, the Court finds that Ms. Kostin pleads that she engaged in constitutionally protected

activity when she complained about Professor Dura’s treatment of her. See Ambrose, 2021 WL

3568373, at *6 (“Ms. Ambrose alleges she complained to various University Officials about the

mistreatment she received from Dr. Kong and Coach Thornton . . . We find her speech protected

under the First Amendment, and we find she pleads the first element of retaliation.”).

Second, Ms. Kostin pleads that BCCC and Dr. Corrigan15 retaliated against her for

14 Although Defendants state that they move to dismiss all federal claims, they do not address the free

speech retaliation claim in any detail. (See Doc. No. 11 at 6–8 (addressing only the equal protection,

procedural due process, and substantive due process claims, with the only reference to free speech

retaliation being in passing with respect to Ms. Kostin’s failure to plead an equal protection violation).)

This provides us another basis to deny their motion to dismiss this claim, as to Defendants BCCC and Dr.

Corrigan.

15 See supra n.12. Ms. Kostin fails to allege that Professor Dura had any involvement in the decision to

dismiss her (the alleged retaliatory action) or that Professor Dura was even aware that Ms. Kostin had

complained about her (the alleged protected activity). Thus, the Court grants the motion to dismiss the

free speech retaliation claim against Professor Dura.

complaining when they dismissed her from the Nursing Program shortly after she complained.

(See, e.g., Doc. No. 9 at ¶¶ 44, 92.) “A retaliatory action must be sufficient to deter a person of

ordinary firmness from exercising his constitutional rights.” Ambrose, 2021 WL 3568373, at *6

(cleaned up). Dismissal from an educational institution would deter a person of ordinary

firmness from exercising her constitutional rights. Cf. id. at *8 (“Receiving a failing grade

resulting in the loss of an athletic scholarship . . . would deter a student of ordinary firmness

from speaking out about alleged professor misconduct.”).

Third, Ms. Kostin has alleged sufficient facts from which the Court can infer causation.

To establish a causal link, a plaintiff must show that there is (1) an unusually suggestive

temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a

pattern of antagonism coupled with timing to establish a causal link. Eck v. Oley Valley Sch.

Dist., 431 F. Supp. 3d 607, 623 (E.D. Pa. 2019). “‘Unusually suggestive’ temporal proximity

means within a few days but no longer than a month.” Id. (cleaned up). Ms. Kostin pleads that

she complained on February 17 and received her letter of dismissal on February 21. (Doc. No. 9

at ¶¶ 25–26, 31–32.) The Court finds this four-day time frame to be unusually suggestive and

therefore, at this stage, Ms. Kostin has satisfied her burden of pleading causation.

In sum, the Court grants the motion to dismiss Ms. Kostin’s free speech retaliation claim

only as to Professor Dura, and denies the motion to dismiss this claim as to BCCC and Dr.

Corrigan.

iv. Equal Protection

Last, Ms. Kostin brings an equal protection claim under the Fourteenth Amendment,

alleging that she “was deprived of her Guaranteed Right to Equal Protection of the Laws,

because she was treated differently than other students, because of her Asian Ethnicity.” (Doc.

No. 9 at ¶ 82.)

Under the Equal Protection Clause of the Fourteenth Amendment, a state shall not “deny

to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend XIV.

“A plaintiff stating a claim under the Equal Protection Clause must allege that he has been

treated differently because of his membership in a suspect class or his exercise of a fundamental

right, or that he has been treated differently from similarly-situated others and that this

differential treatment was not rationally related to a legitimate state interest.” Young v. New

Sewickley Twp., 160 F. App’x 263, 266 (3d Cir. 2005).

Here, Ms. Kostin appears to proceed under the first theory, alleging that “she was treated

differently than other students, because of her Asian ethnicity.” (Doc. No. 9 at ¶ 82.) But Ms.

Kostin fails to plead any facts to support this conclusory legal assertion and therefore her equal

protection claim must be dismissed. See, e.g., Park v. Temple Univ., Civil Action No. 16-5025,

2017 WL 368087, at *4 (E.D. Pa. Jan. 25, 2017) (dismissing the plaintiff’s equal protection

claim where he alleged “he was subjected to disparate treatment because of his status as an Asian

American and naturalized citizen,” because the claim “contain[ed] little more than bare recitals

of legal elements” and the complaint was “devoid of facts that would tend to support an

inference that Plaintiff’s expulsion had anything to do with his status as a member of a protected

class”); see also Raven v. City of Philadelphia, Civil Action No. 15-446, 2017 WL 930316, at *4

(E.D. Pa. Mar. 8, 2017) (dismissing equal protection claim because the “general assertion that

the Board of Pensions and Retirement did not subject similarly situated white police officers to

the same treatment as [the plaintiff, who is African American] with regard to their Service

Connected Disability Pensions is a ‘conclusory statement’”).

Thus, the Court grants Defendants’ motion to dismiss the equal protection claim.

b. State Law Claims

The Court now considers whether Ms. Kostin’s state law claims against Defendants for

negligence, IIED, and breach of contract may proceed.

i. Defenses: Governmental Immunity

Defendants argue that Ms. Kostin’s state law claims must be dismissed because

Defendants have governmental immunity under the PSTCA.16

Under Section 8541 of the PSTCA, “no local agency shall be liable for any damages on

account of any injury to a person or property caused by an act of the local agency or an employee

thereof.” 42 Pa. Stat. & Cons. Ann. § 8541. However, “[a] local agency or its employees may

be liable for claims of negligence that fall into one of the nine enumerated exceptions under

Section 8542(b) of the Tort Claims Act.” James v. Cmty. Coll. of Allegheny Cty., No. 1303 C.D.

2019, 2021 WL 3701746, at *3 (Pa. Cmw. Ct. Aug. 20, 2021). Negligent acts do not include

“acts or conduct which constitute[] a crime, actual fraud, actual malice or willful misconduct.”

16 Defendants also contend that Ms. Kostin’s state law claims are barred by the statute of limitations.

(Doc. No. 11 at 11.) This strikes the Court as disingenuous, given that the Court already addressed this

argument during a telephone conference held on May 19, 2021 (Doc. No. 7). The Court explained the

restrictions regarding in-person staffing in the Clerk of Court’s Office due to the COVID-19 pandemic

and stated the Court would not penalize Ms. Kostin for the Clerk’s office’s two-day docketing delay (see

Doc. No. 1 (complaint dated February 19, 2021 but docketed on February 22, 2021)).

Further, Defendants argue that Ms. Kostin’s state law claims must be dismissed because she failed to

exhaust administrative remedies. (Doc. No. 11 at 10–11.) Defendants assert: “At present, Plaintiff

alleges that she was dismissed from the BCCC Nursing Program pursuant to the BCCC Nursing Student

Handbook. She further alleges that BCCC didn’t follow its own internal policies and Handbook Policy.

However, Plaintiff also fails to allege that she followed the Policy outlined with the Handbook and her

own Exhibits. As such, Plaintiff failed to exhaust her available administrative remedies to challenge the

allegedly incorrect dismissal action.” (Id. at 11.) Notably, Defendants fail to cite to any analogous case

law to support their position. But, even so, the Court finds that, at this stage, viewing the facts in the light

most favorable to Ms. Kostin, she has pled that she exhausted her administrative remedies. Ms. Kostin

alleges that she appealed to the Provost and the President’s Office. (Doc. No. 9 at ¶ 52.) Further, the

dismissal letter Ms. Kostin received states, “Should you wish to challenge this decision, you may contact

the Associate Provost, Dr. Kelleway to begin a grievance process.” (Doc. No. 9-2 at 9 (Ex. 6B).)

Therefore, Defendants’ emphasis on the grievance policy is inapposite, since contacting the Associate

Provost is not listed as an option in the grievance policy. (See Doc. No. 11-1 (describing the multi-step

the grievance process, beginning with speaking to the involved faculty member—here, Professor Dura or

Dr. Corrigan—and ending with being referred to the appropriate college wide committee or the Provost of

Academic Affairs).) By not directing Ms. Kostin to the official grievance policy, Defendants arguably

waived their ability to rely on that process.

42 Pa. Stat. & Cons. Ann. § 8542(a)(2).

Accordingly, to impose liability on a local agency, a plaintiff must satisfy three statutory

requirements. Johnson v. City of Philadelphia, Civil Action No. 19-1591-KSM, 2020 WL

2933853, at *5 (E.D. Pa. June 3, 2020). First, the plaintiff must “demonstrate that at common

law or by statute one not having an immunity defense available could be held liable for the same

harm alleged against the agency.” Mascaro v. Youth Study Ctr., 523 A.2d 118, 1121 (Pa. 1987).

Second, she must establish that her injury “was caused by the negligent acts of the agency or an

employee acting within the scope of his office or duties, excluding acts of crimes, fraud, malice

or willful misconduct.” Id. Third, the plaintiff must show that the local agency’s actions fall

into one of the nine exceptions set forth in § 8542(b). See 42 Pa. Stat. & Cons. Ann. § 8542(a);

see also Johnson, 2020 WL 2933853, at *5. These exceptions include vehicle liability; care,

custody or control of personal property; real property; trees, traffic controls, and street lighting;

utility service facilities; streets; sidewalks; care, custody or control of animals; and sexual abuse.

42 Pa. Stat & Cons. Ann. § 8542(b)(1)–(9).

Courts have held that community colleges fall within the ambit of a “local agency” for

governmental immunity purposes. See James, 2021 WL 3701746, at *3 (finding that the

Community College of Allegheny County was “a local agency for the purpose of governmental

immunity”); Cmty. Coll. of Allegheny Cty. v. Seibert, 601 A.2d 1348, 1352 (Pa. Cmw. Ct. 1992),

aff’d, 533 Pa. 314 (1993) (“conclud[ing] that a community college is a local agency for the

purpose of governmental immunity”); see also D.P. Enters., Inc. v. Bucks Cty. Cmty. Coll., 725

F.2d 943, 944–45 (3d Cir. 1984) (affirming the district court’s dismissal of the complaint

because the action was barred by the PSTCA since BCCC had governmental immunity). Thus,

BCCC is a local agency for the purposes of governmental immunity.

Defendants appears to argue that the PSTCA grants them governmental immunity for all

of Ms. Kostin’s state law claims. However, the PSTCA applies only to tort claims and cannot

shield Defendants from liability for Ms. Kostin’s breach of contract claim.17 See Edison

Learning, Inc. v. Sch. Dist. of Phila., 56 F. Supp. 3d 674, 680 (E.D. Pa. 2014) (“As the name

suggests, the PSTCA applies solely to tort claims, not breach of contract claims.”); see also

Meyer v. Cmty. Coll. of Beaver Cty., 2 A.3d 499, 502–03 (Pa. 2010) (“In line with the extant

understanding of the [PSTCA], we believe the Legislature centered the immunity there conferred

on ‘injury to a person or property’ as a reflection of traditional tort jurisprudence . . . We hold

that governmental immunity does not extend to all statutory causes of action, regardless of

whether they sound in tort or contract.”); McShea v. City of Philadelphia, 995 A.3d 334, 340–41

(Pa. 2010) (“In Count III, we find none of the necessary elements of a contract action . . . What is

present is a tort allegation . . . The clear intent of the Tort Claims Act was to insulate government

from exposure to tort liability.”).

Turning to Ms. Kostin’s IIED claim, the Court notes that the thrust of Ms. Kostin’s

amended complaint is that Defendants acted intentionally and engaged in willful misconduct.

(See, e.g., Doc. No. 9 at ¶ 84 (seeking punitive damages and alleging that Defendants’ “Acts

were Intentional, Reckless and Malicious”); id. at ¶¶ 24, 50 (claiming that Defendants

“intentionally concealed” her nursing notes, which “contained information on her work

performance on the Clinical Date in question”); id. at ¶ 58 (alleging that Defendants “abus[ed]

their authority to intimidate the Plaintiff” and “fabricated a nonexistent Incident Report to protect

their staff and justify their dismissal decision”); id. at ¶ 78 (alleging that Defendants

17 In so ruling, the Court notes that Ms. Kostin is not attempting to avoid the PSTCA by couching a claim

for tort damages under a breach of contract theory.

“intentionally or recklessly” caused her emotional distress).) Accordingly, the Court concludes

that BCCC is entitled to governmental immunity for the IIED claim, since it is an intentional tort.

See, e.g., Tuiz-Rivera v. City & County of Lancaster, Civil Action No. 21-2105, 2021 WL

4145054, at *9 (E.D. Pa. Sept. 9, 2021) (“Ruiz-Rivera’s causes of action for assault, battery, and

trespass are intentional torts and based on allegations of willful conduct. As such, the City of

Lancaster is immune from suit for these claims under the PSTCA.”); McCowan v. City of

Philadelphia, Civil Action No. 19-3326-KSM, 2021 WL 84013, at *31 (E.D. Pa. Jan. 11, 2021)

(finding that the City of Philadelphia was immune under the PSTCA for intentional torts and

granting motion to dismiss IIED claim); Keefer v. Durkos, No. CIV A 304-187, 2006 WL

2773427, at *20 (W.D. Pa. Sept. 25, 2006) (“It is clear from a reading of this governmental

immunity statute that a local agency is not liable for intentional torts of its agents and/or

employees.”).

However, this immunity does not extend to the individual Defendants, Professor Dura

and Dr. Corrigan. “Agency employees are generally immune from liability under the PSTCA for

acts committed within the scope of their employment.” Tucker v. Sch. Dist. of Phila., Civil

Action No. 19-889, 2019 WL 3802066, at *5 (E.D. Pa. Aug. 13, 2019) (citation omitted); see

also 42 Pa. Stat. & Cons. Ann. § 8545 (“An employee of a local agency is liable for civil

damages on account of any injury to a person or property caused by the acts of the employee

which are within the scope of his office or duties only to the same extent as his employing local

agency and subject to the limitations imposed by this subchapter.”). “Immunity does not extend,

however, to acts which constitute ‘a crime, actual fraud, actual malice or willful misconduct.’”

Tucker, 2019 WL 3802066, at *5 (quoting 42 Pa. Stat. & Cons. Ann. § 8550); see also

McCowan, 2021 WL 84013, at *31 n.25 (noting that “immunity is waived when a plaintiff

alleges that the employee’s actions amounted to willful misconduct”). “Essentially, willful

misconduct is synonymous with the term intentional tort.” Tucker, 2019 WL 3802066, at *5

(cleaned up); McCowan, 2021 WL 84013, at *31 n.25 (“By the very nature of the tort of IIED, it

is a claim of willful misconduct.” (cleaned up)). Accordingly, the Court finds that the individual

Defendants are not entitled to immunity for the IIED claim. See McCowan, 2021 WL 84013, at

*31 n.25 (rejecting the former Police Commissioner’s claim for governmental immunity and

allowing the plaintiff’s IIED claim to go forward as against him).

That leaves the negligence claim. Here, Ms. Kostin argues that the second exception

applies: that BCCC had care, custody, and control of her personal property, i.e., her property

interest in her nursing education. (Doc. No. 12 at 3.) Viewing the facts in the light most

favorable to Ms. Kostin, Ms. Kostin has adequately alleged, at this stage of the litigation, that the

personal property exception applies, and therefore Defendants are not entitled to governmental

immunity.

In sum, the Court finds that Defendants are not entitled to governmental immunity as to

the breach of contract claim or the negligence claim. And BCCC is entitled to governmental

immunity for the IIED claim, but Defendants Corrigan and Dura are not.

* * *

Notwithstanding our governmental immunity ruling above, the Court finds that Ms.

Kostin’s state law claims must nevertheless be dismissed, as they do not withstand a Rule

12(b)(6) analysis.

ii. Negligence

“To establish negligence under Pennsylvania law, a plaintiff must show that ‘(1) the

defendant had a duty to conform to a certain standard of conduct; (2) the defendant breached that

duty; (3) such breach caused the injury in question; and (4) the plaintiff incurred actual loss or

damage.’” Turturro v. United States, 629 F. App’x 313, 320 (3d Cir. 2015) (quoting Pyeritz v.

Commonwealth, 32 A.3d 687, 692 (Pa. 2011)). In her amended complaint, Ms. Kostin pleads

that Defendants owed her “distinct Duties of Care,” that they “breached those Distinct Duties of

Care to Plaintiff by failing to conform to applicable standards of conduct required by

Pennsylvania law,” and that there was “a direct causal connection between those individual and

collective breaches of Duty and the damages suffered by Plaintiff.” (See Doc. No. 9 at ¶ 76.)

These are conclusory legal assertions and do not suffice to withstand a motion to dismiss.

Ashcroft, 556 U.S. at 678 (explaining that “threadbare recitals of a cause of action, supported by

mere conclusory statements, do not suffice”); Lapensohn v. Hudson City Sav. Bank, Civil Action

No. 19-4576-KSM, 2021 WL 1581402, at *14 (E.D. Pa. Apr. 21, 2021) (“Here, the Lapensohns

state in [a] conclusory fashion that ‘Defendants failed to conform to the required standard of

conduct owed to Plaintiffs,’ that they ‘suffered substantial damages,’ and that the ‘conduct of

Defendants was a direct and proximate cause, as well as a substantial factor, in bringing about

the serious injuries, damages, and harm to Plaintiffs.’ The Court cannot consider these

conclusory legal assertions in deciding whether the amended complaint states a plausible claim

for negligence.”). Ms. Kostin fails to plead what duty Defendants owed her and how they

breached that duty. See, e.g., Bertinelli v. Transcontinental Gas Pipe Line Co., LLC, No. 3:20-

CV-01558, 2020 WL 7260993, at *3 (M.D. Pa. Dec. 10, 2020) (“Plaintiff cannot simply allege

there was a breach without explaining how this happened . . . Without pleading such additional

facts showing how Defendant’s behavior fell below the standard of care owed to Plaintiffs, this

claim cannot survive.”); Lapensohn, 2021 WL 1581402, at *14 (“Because the Lapensohn’s have

not adequately pled that M&T Bank owed them a duty of care [or] the nature of that duty . . .

their negligence claims fail.”). For these reasons, Ms. Kostin’s negligence claim does not state a

claim.

iii. IIED

“To state a claim for IIED, a plaintiff must show extreme and outrageous conduct that is

deliberate or reckless and causes severe emotional distress.” Fugarino v. Univ. Servs., 123 F.

Supp. 2d 838, 844 (E.D. Pa. 2000) (citations omitted). The Pennsylvania Supreme Court has

characterized IIED as a “most limited” tort. See Hoy v. Angelone, 720 A.2d 745, 755 (Pa. 1998).

A plaintiff may recover for IIED only where the alleged conduct is “so outrageous in character

and so extreme in degree as to go beyond all possible bounds of decency and to be regarded as

atrocious and utterly intolerable in a civilized society.” Dart v. County of Lebanon, Civ. No. 13-

CV-02930, 2014 WL 4792135, at *11 (M.D. Pa. Sept. 23, 2014 (cleaned up); see also Reedy v.

Evanson, 615 F.3d 197, 231–32 (3d Cir. 2010); Fugarino, 123 F. Supp. 2d at 844. “To be sure,

the bar to show IIED is high. Conduct may rightly be characterized as bullying, abusive,

improper, and highly offensive and yet still not be extreme or outrageous enough to allow for

recovery on an IIED claim.” Schaffhouser v. Transedge Truck Ctrs., Civil Action No. 19-5811-

KSM, 2020 WL 2847935, at *6 (E.D. Pa. June 2, 2020).

Although unfortunate, Defendants’ actions towards Ms. Kostin, in dismissing her from

the Nursing Program and allegedly failing to adequately investigate her grievance, do not rise to

the level of extreme or outrageous conduct. Cf. Ellis v. Genesis Healthcare Corp., Civil Action

NO. 18-5536, 2019 WL 1303981, at *4 (E.D. Pa. Mar. 20, 2019) (“Plaintiff alleges that her

firing was racially discriminatory and, as such, constituted outrageous conduct. However, courts

applying Pennsylvania law have repeatedly found that allegations of race discrimination, even

when coupled with retaliatory conduct, do not meet the extreme and outrageous conduct standard

necessary to state a claim for IIED. That is the case even when racial discrimination results in

termination.” (cleaned up)). Therefore, the Court dismisses the IIED claim against all

Defendants.

iv. Breach of Contract

“To support a claim for breach of contract, a plaintiff must allege: (1) the existence of a

contract, including its essential terms; (2) a breach of a duty imposed by the contract; and

(3) resultant damage.” Pittsburgh Const. Co. v. Griffith, 834 A.2d 572 (Pa. Super. Ct. 2003).

Ms. Kostin fails to explicitly identify which documents make up the contract between

herself and BCCC. (See generally Doc. No. 9.) Indeed, she only pleads, in a conclusory fashion,

the elements of a breach of contract claim. (See Doc. No. 9 at ¶ 80 (“A contract existed between

Plaintiff and Defendants; Defendants all breached their duties to Plaintiff under the terms of their

contracts with Plaintiff; and Plaintiff was severely damaged as a result of those breaches,

including the loss of her earning power as a Registered Nurse over thirty future years of

work[.]”). Ms. Kostin does, however, reference violations of the BCCC Nursing Student

Handbook and, liberally construed, the complaint alleges that that Defendants breached the

Nursing Student Handbook. (See, e.g., Doc. No. 9 at ¶¶ 33, 36, 43–44, 47–48; see also, e.g.,

Doc. No. 9-2 at 13 (Ex. 10); id. at 16–19 (Exs. 13–16); id. at 23 (Ex. 18).)

But a breach of contract claim based on a student handbook must fail as a matter of law

where, as here, the Defendant is a public higher educational institution. Indeed, “[c]ourts in

Pennsylvania have ‘declined to construe the student handbook of a public university as a contract

between the public university and the student.’” See Cohn, 2020 WL 738496, at *9 (quoting

Tran v. State Sys. of Higher Ed., 986 A.2d 179, 183 (Pa. Commw. Ct. 2009)) (collecting cases);

see also id. (“Because [the plaintiff’s] breach of contract claim is based on a public university’s

alleged breach of its student handbook and policy provisions, her breach of contract claim

similarly fails under case law.”); Satell v. Temple Univ., Civil Action No. 17-2774, 2017 WL

3158761, at *3 (E.D. Pa. July 25, 2017) (“[The plaintiff] alleges he contracted with the

University under the terms of the Department of Psychology Graduate Handbook, and the

allegations of breach refer to terms in the Handbook. Because Pennsylvania does not recognize

the University’s student handbook as a contract, [the plaintiff] does not allege the existence of a

contract and we must dismiss this claim.”); Borrell, 955 F. Supp. 2d at 408 (dismissing breach of

contract claim against public university because the student handbook “did not establish a

contractual relationship,” such that the plaintiff “fail[ed] to state a necessary element of her

breach of contract claim: the existence of a contract”). Therefore, the Court grants Defendants’

motion to dismiss Ms. Kostin’s breach of contract claim.

IV. Conclusion

For the foregoing reasons, the Court grants in part and denies in part Defendants’ motion

to dismiss. Ms. Kostin’s procedural due process claim and free speech retaliation claim may

proceed against Defendants BCCC and Dr. Corrigan, but they are dismissed without prejudice

and with leave to amend as to Defendant Dura. Ms. Kostin’s substantive due process claim is

dismissed with prejudice and without leave to amend. See Simms, 2018 WL 1413098, at *9

(“The Court finds that leave to amend would be futile with respect to Simms’ substantive due

process claim because the Third Circuit does not recognize a fundamental right to higher

education. Accordingly, the Court will deny Simms leave to amend her substantive due process

claim.”); see also id. (“If a complaint is subject to Rule 12(b)(6) dismissal, a district court must

permit a curative amendment unless such an amendment would be inequitable or futile.”

(quoting CollegeSource, Inc. v. AcademyOne, Inc., 597 F. App’x 116, 126 (3d Cir. 2015)). Ms.

Kostin’s equal protection, negligence, and breach of contract claims are dismissed without

prejudice and with leave to amend. See Fed. R. Civ. P. 15(a) (“The Court should freely give

leave [to amend] when justice so requires.”). Ms. Kostin’s IIED claim is dismissed with

prejudice as to Defendant BCCC but without prejudice and with leave to amend as to Defendants

Dura and Corrigan.

An appropriate Order follows.