Petition for Writ of Certiorari — Angela Borrell, Petitioner v. Arthur F. Richer, et al.

APPENDICES

1a

APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 15-2823, 16-3837, 16-3959

____________

ANGELA BORRELL,

Appellant in 16-3837

v.

BLOOMSBURG UNIVERSITY

ARTHUR F. RICHER; GEISINGER MEDICAL

CENTER,

Appellants in 15-2823

MICHELLE FICCA,

Appellant in 16-3959

____________

On Appeal from the United States District Court for

the Middle District of Pennsylvania

(D.C. No. 3-12-cv-02123)

District Judge: Honorable A. Richard Caputo

____________

Argued May 24, 2017

Before: HARDIMAN, ROTH, and FISHER, Circuit

Judges.

2a

(Filed: August 30, 2017)

Barry H. Dyller [Argued]

Theron J. Solomon

Dyller Law Firm

88 North Franklin Street

Gettysburg House

Wilkes-Barre, PA 18701

Attorneys for Plaintiff–Appellee–Cross Appellant Borrell

Thomas S. Giotto

Jaime S. Tuite [Argued]

Tiffany A. Jenca, Esq.

Buchanan Ingersoll & Rooney

301 Grant Street

One Oxford Centre, 20th Floor

Pittsburgh, PA 15219

Attorneys for Appellants Geisinger Medical

Center and Arthur Richer

John G. Knorr, III [Argued]

Maryanne M. Lewis

Office of Attorney General of Pennsylvania

Strawberry Square

Harrisburg, PA 17120

Keli M. Neary

Pennsylvania State Police

Office of Chief Counsel

1800 Elmerton Avenue

Harrisburg, PA 17110

Attorneys for Appellee Michelle Ficca

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Seth A. Goldberg

Philip H. Lebowitz

Duane Morris

30 South 17th Street

United Plaza Philadelphia, PA 19103

Attorneys for Amicus Hospital & Healthsystem

Association of Pennsylvania

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

This appeal—which raises questions involving

the state action doctrine and the Due Process Clause

of the Fourteenth Amendment—has important ramifications for private hospitals that partner with public universities. Angela Borrell, a student working at

a private hospital through a public university’s clinical program, was dismissed for refusing to take a

drug test in violation of hospital policy. She sued under 42 U.S.C. § 1983, claiming she was deprived of

her property interest in the program without due

process. Contrary to the judgment of the District

Court, we hold that Defendants are entitled to judgment as a matter of law.

I

In 2007, Geisinger Medical Center (Geisinger or

GMC) partnered with Bloomsburg University to establish the Nurse Anesthetist Program (NAP or program) a private hospital, Geisinger runs the “Clinical

Training portion of the Program” for the aspiring

nurse anesthetists while Bloomsburg, a public university, teaches them in the classroom. App. 1510.

The Program operates subject to a written collaboration agreement that provides, among other things,

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that Geisinger and Bloomsburg will cooperate by: establishing a joint admissions committee, staffing an

advisory committee, agreeing on how many students

to admit, approving guidelines for clinical training,

and promoting and marketing the Program. In other

ways, Geisinger’s and Bloomsburg’s principal roles in

the Program remain distinct. Geisinger provides certificates upon completion of its clinic and Bloomsburg

confers Master of Science degrees to students who

complete both the coursework and the clinical component.

NAP students in Geisinger’s clinic administer

medical care to patients under the supervision of

Geisinger employees. Accordingly, the collaboration

agreement states that Geisinger’s policies—including

its drug and alcohol policy— apply to NAP students

while participating in the clinic. See App. 1512. The

agreement also provides that Geisinger has sole authority to remove an enrollee from the clinical portion of the NAP due to unsatisfactory performance or

failure “to comply with applicable policies and standards of Geisinger.” App. 9. Likewise, Bloomsburg’s

Student Handbook requires students to “comply with

the drug and alcohol policies and drug testing procedures as required by agencies affiliated with the Department of Nursing,” which includes Geisinger.

Borrell v. Bloomsburg Univ., 63 F. Supp. 3d 418, 425

(M.D. Pa. 2014) (quoting policy).1

1 Bloomsburg’s Student Handbook “also sets forth a ‘review process’” for students suspected of violating its terms. Borrell, 63 F.

Supp. 3d at 426. The Student Nurse Anesthetist Handbook in

the collaboration agreement allows students to “initiate a

grievance” if they have a complaint about a disciplinary action

and commits “to being reasonable in an attempt to correct [any]

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Geisinger’s drug and alcohol policy applies to all

its employees and contractors (including clinical students working there). The policy states that drug

tests “may be administered upon reasonable suspicion of substance abuse, (this may include [individual] situations . . . where HR is made aware of alleged

drug/alcohol use and deems it as reasonable cause to

test the employee).” App. 1529. Any Geisinger worker “who refuses to cooperate in any aspect [of the

testing process] . . . shall be subject to disciplinary

action, including termination, for a first refusal or

any subsequent refusal.” App. 1527. The policy does

not provide for any pre-termination hearing or process.

The Director of the NAP at all times relevant to

this case was a Geisinger nurse anesthetist named

Arthur Richer. In that capacity, Richer became a

joint employee of Geisinger and Bloomsburg, with

Bloomsburg picking up a quarter of his salary. Richer managed the clinical component of the NAP at

Geisinger while Michelle Ficca (Bloomsburg’s Chair

of Nursing) oversaw the Program’s academic component.

In 2012, Richer terminated Angela Borrell for violating Geisinger’s drug and alcohol policy by refusing to take a drug test when asked. Borrell, who previously had been a registered nurse at GMC, enrolled

in the NAP in 2011 and began her clinical work in

2012. In September 2012, another nurse reported to

Geisinger’s Assistant Director of the NAP that

Borrell used cocaine and “acted erratically” on a recent trip to New York. Borrell, 63 F. Supp. 3d at 427.

offense.” Id. The purported violation in this case was of GMC’s

drug and alcohol policy, which provides no grievance process.

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This claim was relayed to Richer, who had previously

“noticed that Borrell appeared disheveled on a few

occasions.” Id. Richer discussed the allegation with

three other GMC employees and Ficca—his counterpart at Bloomsburg. Richer and a member of

Geisinger’s Human Resources Department then met

with Borrell and asked her to take a drug test. During this meeting, which lasted about an hour, Borrell

asked several questions about the reason for the test

and called her mother for advice. Borrell eventually

refused to take the drug test, stating she “did not

want her record to show that she submitted to a

drug/urine screen.” Id. at 428. Richer informed

Borrell that she would have “no option to test later”

and claims he told Borrell she might be terminated

for refusing the test, but Borrell responded that she

was willing to “face the consequences.” Geisinger Br.

10. Borrell claims she was warned of “consequences”

generally, but not termination. Borrell, 63 F. Supp.

3d at 428.

After consulting with Geisinger’s Human Resources Department, Richer decided to dismiss

Borrell from the Program the next day. He claims he

did so in his capacity as Director of the clinical training portion of the NAP, and that Bloomsburg and

Ficca played no part in the decision—though he informed them of it. In a September 25, 2012 letter,

Richer informed Borrell that she was terminated

from the NAP for her refusal to take a drug test. A

draft of that letter was circulated among Geisinger

Human Resources, Ficca, and Richer, who “all provided comments and suggestions as to the contents of

the letter.” Id. at 429. Richer then sent a final copy to

Human Resources and Ficca. The letter was printed

on joint GMC/Bloomsburg stationery and Richer and

Ficca signed it. Richer signed as the “Director of the

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NAP,” and Ficca signed indicating that she “reviewed

the above information and agree[d] with the decision

to terminate Angela Borrell from the . . . Program.”

Id. (first alteration in original).

After she received the letter terminating her

from the Program, Borrell tried to contact “Richer

and others at both Geisinger and Bloomsburg . . . to

state her willingness to submit to a drug test.” Id.

That request was denied. Borrell then requested, but

did not receive, a formal hearing from Bloomsburg to

contest her termination from the Program. Ficca replied that since Bloomsburg had to honor Geisinger’s

drug policy, disqualification from GMC’s clinic made

her ineligible to complete her coursework at Bloomsburg necessary to complete the Program.

Borrell then commenced a § 1983 action in the

United States District Court for the Middle District

of Pennsylvania against GMC, Richer, Bloomsburg,

and Ficca for, among other things, violation of her

due process right to a pre-deprivation hearing. The

District Court granted Borrell’s motion for summary

judgment with respect to GMC, Richer, and Ficca,

holding them liable for denying Borrell due process.

Essential to its holding, the District Court found that

GMC and Richer were state actors and that Ficca

was not entitled to qualified immunity. The Court

then concluded that “because Defendants deprived

Borrell of a property interest while acting under color of state law when they dismissed her from the

NAP without due process, her motion for summary

judgment as to liability on the procedural due process deprivation of property interest claim will be

granted.” Id. at 423. The case was then tried to a jury on the issue of damages. The jury awarded Borrell

$415,000 in compensatory damages and $1,100,000

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in punitive damages. Later granting the Defendants’

remittitur motions, the District Court reduced

Borrell’s compensatory damages to $250,000 and her

punitive damages to $750,000.

GMC, Richer, and Ficca timely appealed the adverse summary judgment along with other issues

from the subsequent trial.

II

The District Court had jurisdiction under 28

U.S.C. §§ 1331 and 1343. We have jurisdiction under

28 U.S.C. § 1291. We exercise plenary review over

both “orders entered on motions for summary judgment,” Mancini v. Northampton Cty., 836 F.3d 308,

313 (3d Cir. 2016), and decisions regarding qualified

immunity as pure legal issues, Sharp v. Johnson,

669 F.3d 144, 159 (3d Cir. 2012).

Summary judgment should be granted only “if

the movant shows that there is no genuine dispute as

to any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

In considering a summary judgment decision, “we

view the underlying facts and all reasonable inferences therefrom in the light most favorable to the

party opposing the motion.” Blunt v. Lower Merion

Sch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (citation

omitted).

III

The primary issue on appeal is whether GMC,

Richer, or Ficca are liable for denying Borrell due

process when she was dismissed from the NAP. Because (A) GMC and Richer are not state actors with

respect to Richer’s decision to dismiss Borrell and (B)

Ficca is entitled to qualified immunity for her in-

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volvement in Borrell’s termination, we hold that no

Defendant is liable to Borrell.

A

First, we must determine whether the conduct of

GMC and Richer should be considered state action.

“The Fourteenth Amendment governs only state

conduct, not that of private citizens.” Kach v. Hose,

589 F.3d 626, 646 (3d Cir. 2009). So Borrell’s claim is

not cognizable unless she was harmed “under color of

law,” a standard identical to the Fourteenth

Amendment’s “state action” requirement. United

States v. Price, 383 U.S. 787, 794 n.7 (1966).

In Kach, this Court summarized “three broad

tests generated by Supreme Court jurisprudence to

determine whether state action exists” in close cases

and they are all “fact-specific.” 589 F.3d at 646.

Those tests are: “(1) whether the private entity has

exercised powers that are traditionally the exclusive

prerogative of the state; (2) whether the private party has acted with the help of or in concert with state

officials; and (3) whether the state has so far insinuated itself into a position of interdependence with the

acting party that it must be recognized as a joint

participant in the challenged activity.” Id. (alterations and citation omitted). Of seminal importance to

this appeal, we have clarified that the relevant question is not whether the private actor and the state

have a close relationship generally, but whether

there is “such a close nexus between the State and

the challenged action that seemingly private behavior may be fairly treated as that of the State itself.”

Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)

(emphasis added) (citation omitted). In other words,

the government must be “responsible for the specific

conduct of which the plaintiff complains.” Blum v.

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Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis omitted). And this is true even when the actor is employed by the state. As we explained in Mark v. Borough of Hatboro, “an otherwise private tort is not

committed under color of law simply because the

tortfeasor is an employee of the state.” 51 F.3d 1137,

1150 (3d Cir. 1995). Contrary to Borrell’s argument,

then, Richer’s joint employment with Bloomsburg

and GMC’s partnership with Bloomsburg with respect to the Program do not “end the inquiry” on the

state actor question. Borrell Br. 33.

Rather, the pertinent question is whether Richer

was wearing his Geisinger hat or his Bloomsburg hat

when he decided to terminate Borrell. Actions taken

“in the ambit of [non–state motivated] pursuits” are

excluded from state action. Screws v. United States,

325 U.S. 91, 111 (1945). The record shows that Richer’s actions were authorized by Geisinger to enforce

its drug and alcohol policy, and not pursued under

any authority granted him by the state. Simply put,

Richer did not need permission from Bloomsburg to

fire a Geisinger worker who violated a hospital policy.

In concluding that Geisinger acted under color of

state law, the District Court focused on the fact that

it “was a willful participant in joint activity, the

NAP, with Bloomsburg.” Borrell, 63 F. Supp. 3d at

436. But as we noted, that should have been the beginning of the inquiry, not the end of it. The government must have also been closely involved with the

decision to terminate Borrell for that action to be

“fairly attributable to the state.” Crissman v. Dover

Downs Entm’t Inc., 289 F.3d 231, 245 n.18 (3d Cir.

2002).

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The District Court found, and Borrell argues,

that Geisinger’s termination of Borrell is “fairly attributable to the state” for two main reasons: (1)

Richer, a joint employee of GMC and Bloomsburg,

terminated Borrell via a letter on “joint BloomsburgGeinsinger station[e]ry”; and (2) Ficca, a Bloomsburg

employee, was involved in the termination process by

providing input to Richer regarding Borrell’s termination letter and by signing it. Borrell, 63 F. Supp.

3d at 436. As discussed already, the fact that Richer

was a joint employee does not answer the question of

whether his decision to enforce GMC’s drug and alcohol policy by terminating Borrell was “caused by

the exercise of some right or privilege created by the

State or by a rule of conduct imposed by . . . a person

for whom the State is responsible.” Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). Richer’s

decision was to enforce the hospital’s preexisting policy requiring employees to participate in drug tests

when asked, and GMC had already fired four other

nurses for violating the same policy. Neither

Bloomsburg nor its agreement with Geisinger played

any part in creating the policy enforced in this case;

the agreement merely made clear that Geisinger’s

employee policies would govern the behavior of clinical students while they were working at the hospital.

In light of the controlling legal principles we

have articulated, the question boils down to which

entity—the hospital or the university—exercised the

authority to terminate Borrell for a violation of

Geisinger policies. The District Court concluded that

because Ficca signed the termination letter and was

consulted regarding its contents, “Bloomsburg and

Geisinger jointly participated in terminating Borrell

from the NAP.” Borrell, 63 F. Supp. 3d at 436. The

Court also stated that because Richer terminated

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Borrell in his capacity as Director of the NAP, the

decision was made under the auspices of his employment by Bloomsburg and therefore under the

color of state law. Id. at 437.

The agreement between Geisinger and Bloomsburg indicates otherwise. It makes clear that

Geisinger retained the authority to unilaterally “exclude a Student from participation in the Clinical

Training” if the student doesn’t comply with a GMC

policy. App. 1514. And when Richer made the decision to terminate Borrell for violating hospital policy,

he acted in his capacity as a GMC employee, claiming he sought to maintain nursing standards at the

hospital. And his capacity was not altered merely because he discussed this decision with—and received

input on his letter from—Ficca and another jointNAP employee. “Action taken by private entities

with the mere approval or acquiescence of the State

is not state action.” Kach, 589 F.3d at 649 (citation

omitted). Ficca’s signature on the termination letter

purports to do nothing more than concur with Richer’s decision, which is not enough for state action.

Rather, the state must have “exercised control over

the particular conduct that gave rise to the plaintiff’s

alleged constitutional deprivation.” Id. Under the collaboration agreement, Bloomsburg had no such control.

Notwithstanding his consultation with others,

Richer made the decision to fire someone working at

GMC due to her violation of a preexisting policy of

the hospital, and he had the authority to do so based

on his position there. “[T]he authority of state officials . . . was wholly unnecessary to effectuate

Borrell’s dismissal from the NAP.” GMC Third-Step

Br. 18. Accordingly, we must reverse the District

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Court’s holding that GMC and Richer were state actors.

B

Turning to the case against Ficca, we hold that

she is entitled to qualified immunity. We do so because it was not clearly established that Ficca’s

agreement with Richer’s decision, which she reasonably believed to be within his authority as an employee of GMC, violated Borrell’s constitutional

rights.

Qualified immunity protects “all but the plainly

incompetent or those who knowingly violate the law.”

Malley v. Briggs, 475 U.S. 335, 341 (1986). If a government official—in this case, Ficca—reasonably

thinks her conduct complies with the law, she is

shielded from liability. See Pearson v. Callahan, 555

U.S. 223, 244 (2009). Ficca is entitled to qualified

immunity as long as she does not violate a “clearly

established” constitutional or federal right. Sharp,

669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S.

194, 201 (2001)). “A right is clearly established for

qualified immunity purposes where its contours are

‘sufficiently clear that a reasonable official would

understand that what [s]he is doing violates that

right.’” Id. (quoting Saucier, 533 U.S. at 202). In other words, the application of the right to the issue at

hand must be “beyond debate.” Zaloga v. Borough of

Moosic, 841 F.3d 170, 175 (3d Cir. 2016).

The record indicates that it is hardly “beyond debate” that Ficca violated Borrell’s due process rights.

Although many cases have concluded that graduate

students at public universities have property interests in continuing their education, see Borrell, 63 F.

Supp. 3d at 458 (citing cases), those cases do not

speak to the right of a clinical student at a private

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hospital to a hearing or comparable process before

termination—even if the natural consequence of that

termination is an inability to complete an educational program. The District Court pointed to no cases

even suggesting such a right and we are aware of no

such case. And the district court cases cited cannot

clearly establish law for qualified immunity purposes

in any event. See Camreta v. Greene, 563 U.S. 692,

709 n.7 (2011).

Furthermore, there is no evidence of record to

suggest that Ficca could have done anything to stop

Richer’s decision to deny additional process to Borrell

before terminating her from the Program. The

agreement between Geisinger and Bloomsburg states

that GMC “shall have sole authority and control over

all aspects of Clinical Training.” App. 1512. And

while the agreement requires Geisinger to notify

Bloomsburg before dismissing a student, Geisinger

had the unilateral authority to dismiss students from

the clinical portion of the Program, which would preclude them from obtaining the certificate necessary

to become a nurse anesthetist. And if Ficca had no

authority over Richer’s decision to terminate Borrell,

a reasonable official in Ficca’s position would not

have known that she owed Borrell any more process.

As for Ficca’s concurrence with Richer’s decision

to terminate Borrell, agreement is insufficient to

demonstrate liability absent actual authority to

make

the

decision.

And

without

actual

decisionmaking authority, Ficca’s edits, suggestions,

and participation in the termination letter do not

amount to a constitutional violation. Cf. McLaughlin

v. Watson, 271 F.3d 566, 573 (3d Cir. 2001). Additionally, any process provided by Ficca at Bloomsburg could not have forced Geisinger or Richer to

15a

change the decision to terminate Borrell from the

clinical portion of the Program based on her violation

of hospital policy. As Ficca notes by way of analogy, if

she “had dismissed Borrell from the Program for . . .

failing grades or cheating on an examination . . . no

one would say that she was entitled to a hearing

from Geisinger.” See Ficca Br. 25. Likewise, it’s not

clear that Borrell was owed a hearing from Ficca before Geisinger dismissed her from the Program.

To support her claim that Ficca supervised Richer’s termination decision, Borrell notes that Ficca responded affirmatively when asked: “You are one person who Mr. Richer would need to consult [before

terminating a clinical student], correct?” App. 329.

But in context, Ficca had claimed she did not know

whether Richer was the final decisionmaker on dismissals of clinical students and merely asserted that

Richer likely had to “discuss[]” any such decision

with other parties to make sure he was correctly applying “policies that have been established.” App.

328–29. Given the collaboration agreement’s requirement that Bloomsburg had to receive notice of a

termination decision, this answer does not show that

Ficca had authority to prevent Richer’s decision. It

shows only that she had to be notified of it.2

2 Borrell also claims that Ficca was “Richer’s direct supervisor

at [Bloomsburg],” and is thus liable because she “did not take

any steps to prevent her subordinate Richer from sending the

termination letter.” Borrell Br. 61 (citing App. 553–54). But in

the deposition to which Borrell refers, Richer stated only that

Ficca was “above” him “[i]n the University hierarchy.” App. 554.

While Ficca supervised Richer for university business, she did

not supervise him in his other capacities—such as his GMCrelated supervisory duties. Nothing in the NAP agreement gave

Bloomsburg or Ficca authority to control a decision by

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In responding to Ficca’s qualified immunity argument, Borrell seems to miss the relevant question—would a reasonable official have known that

her actions violated a clearly established right? Even

if, as Borrell claims, Ficca should have known that

Richer’s actions were disciplinary and not academic,

and Borrell was thus entitled to more process from

someone, this does not answer the question of

whether Ficca was that person. Given all the factors

discussed herein, and given her reasonable understanding that she could not have provided process for

the clinical dismissal even if she thought it was necessary in the abstract, the District Court should have

granted qualified immunity to Ficca.

IV

For the reasons stated, we will reverse the District Court’s summary judgment and remand the

case for entry of judgment in favor of Geisinger,

Richer, and Ficca.

Geisinger or Richer to remove a student from GMC’s clinic, and

thus the Program.

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Borrell v. Bloomsburg University et al.

Nos. 15-2823, 16-3837, 16-3959

Judge Roth, concurring in part and concurring in the

judgment:

In regard to Part III.B, I would hold that Ficca

and Bloomsburg University’s participation in the

dismissal of Borrell from the program was academic,

not disciplinary. Although Borrell’s academic marks

were satisfactory, once she had been dismissed from

the clinical portion of the NAP program by Geisinger,

she was no longer academically qualified to complete

the NAP. For that reason, she was not being dismissed from the Bloomsburg University portion of

the program because she refused to take the drug

test. She was being dismissed because she was no

longer academically eligible to complete the program.

Clearly, this action is academic, rather than disciplinary.

Moreover, because Ficca and Bloomsburg University’s action in dismissing Borrell from the program was not disciplinary, she in fact received all the

due process to which she was entitled. See, e.g.,

Board of Curators of the University of Missouri v.

Horowitz, 435 U.S. 78, 85 (1978).

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APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANGELA BORRELL,

)

)

Plaintiff,

) CIVIL ACTION NO.

v.

) 3:12-CV-2123

)

BLOOMSBURG UNI)

VERSITY, GEISINGER

MEDICAL CENTER, and )

ARTHUR F. RICHER and )

)

MICHELLE FICCA in

)

their individual and offi)

cial capacities,

)

Defendants.

)

AMENDED JUDGMENT IN A CIVIL ACTION

The court has ordered that (check one):

the plaintiff (name) ____________________ recover from

the defendant (name) ____________________ the amount of

dollars ($ ________), which includes prejudgment interest at the rate of ________%, plus post judgment

interest at the rate of ________% per annum, along

with costs.

the plaintiff recover nothing, the action be dismissed on the merits, and the defendant (name)

____________________

recover costs from the plaintiff

(name) __________________________________________________________.

Judgment is entered in favor of the Plaintiff,

Angela Borrell and against Defendants,

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Geisinger Medical Center, Arthur F. Richer

and Michelle Ficca, jointly and severally, in

the sum of $250,000 in compensatory damages. Judgment is entered in favor of Plaintiff

Angela Borrell and against Defendant

Geisinger Medical Center in the sum of

$750,000 in punitive damages. Plaintiff is

awarded $465,722 in fees for services rendered

by the Dyller Law Firm and $19,490.79.

Other:

This action was (check one):

tried by a jury with Judge Caputo presiding,

and the jury has rendered a verdict.

tried by Judge _________ without a jury and the

above decision was reached.

decided by Judge ________________ on a motion

for _____________________________________________

________________________________________________.

Date: 09/26/16

CLERK OF COURT

/s/ Judith A. Malave, Deputy Clerk

Signature of Clerk or Deputy Clerk

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APPENDIX C

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

ANGELA BORRELL,

Plaintiff,

CIVIL ACTION NO.

3:12-CV-2123

v.

(JUDGE CAPUTO)

BLOOMSBURG UNIVERSITY, GEISINGER

MEDICAL CENTER, and

ARTHUR F. RICHER and

MICHELLE FICCA in

their individual and official capacities,

Defendants.

ORDER

NOW, this 19th day of September, 2016, in accordance with the accompanying memorandum, IT

IS HEREBY ORDERED that:

(1)

Defendant Dr. Michelle Ficca’s (“Dr.

Ficca”) Post Trial Motions (Doc. 255) are

GRANTED IN PART AND DENIED

IN PART;

(A)

Dr. Ficca’s motion for remittitur

is GRANTED.

The Plaintiff

shall REMIT $165,000 of the

compensatory damage award.

Should the Plaintiff refuse to accept $ 250,000 in compensatory

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damages, a new trial on the issue

of compensatory damages shall

be conducted.

(B)

(2)

Dr. Ficca’s motion is DENIED in

all other respects.

Defendants Geisinger Medical Center

(“GMC”) and Arthur Richer’s (“Mr.

Richer”) (collectively “Geisinger Defendants”) Motion for Judgment as a

Matter of Law or New Trial or Remittitur (Doc. 257) is GRANTED IN

PART AND DENIED IN PART;

(A)

The Geisinger Defendants’ motion for remittitur of the compensatory

damages

award

is

GRANTED. The Plaintiff shall

REMIT $165,000 of the compensatory damage award. Should

the Plaintiff refuse to accept

$ 250,000 in compensatory damages, a new trial on the issue of

compensatory damages shall be

conducted.

(B)

The Geisinger Defendants’ motion for remittitur of the punitive

damages award is GRANTED.

The Plaintiff shall REMIT

$365,000 of the punitive damage

award. Should the Plaintiff refuse to accept $750,000 in punitive damages, a new trial on the

issue of punitive damages shall

be conducted.

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(C)

The Geisinger Defendants’ motion is DENIED in all other respects,

(3)

Plaintiff’s Motion for Costs and Attorneys’ Fees (Doc. 245) is GRANTED IN

PART in the amount of $485,212.79.

Plaintiff is awarded $465,722 in fees for

services rendered by the Dyller Law

Firm, and $19,490.79 in costs.

(4)

Plaintiff’s Motion for Leave to File a

Supplemental Declaration and Exhibits

Concerning Plaintiff’s Motion for An

Award of Costs and Attorneys’ Fees

(Doc. 296) is DENIED.

/s/ A. Richard Caputo

A. Richard Caputo

United States District

Judge

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APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

ANGELA BORRELL,

Plaintiff,

v.

CIVIL ACTION NO.

3:12-CV-2123

(JUDGE CAPUTO)

BLOOMSBURG UNIVERSITY, GEISINGER

MEDICAL CENTER, and

ARTHUR F. RICHER and

MICHELLE FICCA in

their individual and official capacities,

Defendants.

MEMORANDUM

Presently before the Court are three motions:

Plaintiff Angela Borrell’s (“Borrell”) Motion for Partial Summary Judgment, (Doc. 86); Defendant

Michelle Ficca’s (“Dr. Ficca”) Motion for Summary

Judgment, (Doc. 114); and Defendants Geisinger

Medical Center (“Geisinger”) and Arthur Richer’s

(“Richer”) Motion for Summary Judgment, (Doc.

116).1 Borrell was dismissed as a student from

Bloomsburg University (“Bloomsburg”) and Geisinger’s collaborative Nurse Anesthesia Program (the

“NAP”) in September 2012 after she refused to sub1 Where appropriate, Dr. Ficca, Richer, and Geisinger will be referred to collectively as “Defendants.”

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mit to a drug test. Shortly thereafter, Borrell commenced this action asserting, among others claims,

deprivation of her equal protection and due process

rights. With discovery now complete, Borrell seeks

summary judgment as to liability on her procedural

due process liberty and property interest claims,

while Defendants move for summary judgment on all

claims.

Because Borrell fails to present any evidence

that she was treated differently from an individual

that was “alike in all relevant aspects,” Defendants

will be granted summary judgment on the “class of

one” equal protection claim. Furthermore, since Defendants did not make public any false statements in

relation to Borrell’s dismissal from the NAP, Defendants’ motion for summary judgment on the due

process liberty interest claim will be granted. Conversely, because Defendants deprived Borrell of a

property interest while acting under color of state

law when they dismissed her from the NAP without

due process, her motion for summary judgment as to

liability on the procedural due process deprivation of

property interest claim will be granted.

I.

Factual Background

A. The Nurse Anesthesia Program

In 2006, Richer was instructed by Geisinger’s2

Executive Leadership Team to explore options with

universities in order to create a joint or collaborative

accreditation program. (Doc. 115, Defendants’ Statement of Material Facts, “Defs.’ SMF,” ¶ 1; Doc.

139, Plaintiff’s Counterstatement of Facts, “Plf.’s

2 Geisinger is a legal entity owned by the Geisinger Health System. (Defs.’ SMF, ¶ 36; Plf.’s CSF, ¶ 36.)

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CSF,” ¶ 1.) The following year, Geisinger decided to

form a collaborative program, known as the Nurse

Anesthesia Program (the “NAP”), with Bloomsburg,

an educational institution of the System of Higher

Education of the Commonwealth of Pennsylvania

that provides a Masters of Science degree accredited

by the Commission of Collegiate Nursing Education

in the area of nursing for graduates of accredited

programs. (Defs.’ SMF, ¶¶ 2-3; Plf.’s CSF, ¶¶ 2-3.)

The NAP was designed to be distinct from

Geisinger’s previous programs for registered nurses.

(Defs.’ SMF, ¶ 4; Plf.’s CSF, ¶ 4.) Under the NAP,

students in the program are given the opportunity to

perform hands-on work at Geisinger under the supervision of Certified Registered Nurse Anesthetists.

(Defs.’ SMF, ¶ 5; Plf.’s CSF, ¶ 5.)

In August 2007, Geisinger and Bloomburg entered into the “Collaboration Agreement for Nurse

Anesthesia Education” (the “Agreement”). (Plf.’s Ex.

10.) As set forth in the Agreement, Bloomsburg

“wishes to collaborate with Geisinger to support the

Academic Training portion of the Program and provide the Program educational expertise and facilities,” and Geisinger “wishes to collaborate with University to support the Clinical Training portion of the

Program and provide the Program clinical expertise

and facilities.” (Id.) The Agreement provides that

“none of the provisions of this Agreement are intended to create nor shall be deemed or construed to create any relationship between the parties other than

that of independent entities contracting with each

other solely for the purpose of effecting the provisions of this Agreement.” (Id. at ¶ 9.7.)

The parties’ duties and responsibilities are enumerated in the Agreement. For example, students

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that complete the Clinical Training portion of the

NAP receive a Certificate of Completion from

Geisinger, while Bloomsburg provides a MS Degree

in Nursing to students that successfully complete the

program. (Id. at ¶ 2.1) Both parties were also required to assist with meeting the necessary criteria

for accreditation standards. (Id. at ¶ 2.2.) The

Agreement further provides that “[b]oth parties

shall:” (1) “develop a joint Admissions Committee to

finalize admission criteria and recommend admission

of Students into the Program;” (2) “designate at least

three (3) representatives to serve on an advisory

council for the program;” (3) “establish and mutually

agree upon the number of Students that will be allowed to participate in the Program for each class;”

(4) “develop and approve the curricula for Students

while they are participating in the Clinical Training

at Geisinger;” and (5) “develop guidelines for the

Clinical Training portion of the Program with incorporation into University’s Department of Nursing

Graduate Student Handbook and based on University academic policies.” (Id. at ¶ 2.2.) The Agreement

also requires both parties to promote and market the

NAP. (Id. at ¶ 2.6.) Bloomsburg further agreed to

“advise Students that Students w ill, while participating in the Clinical Training portion of the Program, be expected to adhere to all applicable policies

and standards of Geisinger,” including Geisinger’s

Drug and Alcohol Policy. (Id. at ¶ 2.8.) And,

“[s]ubject to the terms of this Agreement, Geisinger

shall have sole authority and control over all aspects

of Clinical Training provided to Students pursuant to

this Agreement including, without limitation, designation of patients and facilities.” (Id. at ¶ 2.4.) Similarly, the Agreement provides that Geisinger may

exclude a Student from participation in the Clinical

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Training if “(i) the Student’s performance is unsatisfactory to Geisinger; (ii) the Student fails to comply

with applicable policies and standards of Geisinger;

or (iii) the Student’s health status may prevent attendance and successful completion of the Clinical

Training portion of the Program. Geisinger will notify University in the event a student is excluded.” (Id.

at ¶ 8.2.)

As to compensation, Bloomsburg is required to

pay Geisinger “at the beginning of each semester, at

the rate of 50% of the billed tuition and related fees.”

(Id. at ¶ 5.1.) Bloomsburg is also obligated to hire

“the Program Director as a full-time tenure track

graduate faculty member of the Department of Nursing.” (Id.) “Program Director” is defined as:

the individual interviewed, approved and

employed by both University and Geisinger

to oversee the Program and serve as the liaison between Geisinger and University relative to the Program. As an employee of both

Geisinger and University, Program Director

shall be entitled to any benefits or entitlements associated with such employment with

each party in accordance with each party’s

policies. . . .

(Id. at ¶ 1.4.)

The Agreement provides that the NAP is approximately thirty-three (33) months in duration. (Id. at

¶ 2.2.) Approximately twenty-three (23) to twentyfive (25) months are dedicated to the Clinical Training portion of the program. (Id.) During the Clinical

Training portion of the NAP, the students work with

and under the supervision of Geisinger employees.

(Defs.’ SMF, ¶ 41; Plfs. CSF, ¶ 41.) Geisinger owns

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the buildings in which it operates. (Defs.’ SMF, ¶ 37;

Plfs. CSF, ¶ 37.)

Geisinger and Bloomsburg have joint employees.

(Doc. 88, Plaintiff’s Statement of Material Facts,

“Plf.’s SMF,” ¶¶ 10-11; Doc. 132, Defendants’ Counterstatement of Facts, “Defs.’ CSF,” ¶¶ 10-11.) Defendant Richer worked as the Interim Program Director from 2008 until 2010 solely as a Geisinger employee. (Defs.’ SMF, ¶ 23; Plfs. CSF, ¶ 23.) In 2010,

once students arrived to begin the clinical training in

the NAP, Richer became a joint employee of Bloomsburg and Geisinger. (Richer Dep., 375:10-13; Plf.’s

Ex. 11.) Richer was the Director of the NAP at that

time. (Plf.’s SMF, ¶ 10; Defs.’ CSF, ¶ 10.) Richer’s

pay did not change after he became a joint employee

of Bloomsburg and Geisinger, as he continued to receive a yearly salary of $190,000.00. (Defs.’ SMF, ¶

26; Plfs. CSF, ¶ 26.) However, Bloomsburg began

paying approximately twenty-five percent (25%) of

Richer’s salary, in the annual amount of $45,225.97.

(Defs.’ SMF, ¶ 27; Plfs. CSF, ¶ 27.) Prior to becoming

a joint employee of Bloomsburg and Geisinger, Richer worked exclusively for Geisinger. (Defs.’ SMF, ¶

28; Plfs. CSF, ¶ 28.)

Other joint Bloomsburg-Geisinger employees

were Brenda Wands (“Dr. Wands”) and Debra

Minzola (“Minzola”). (Plf.’s SMF, ¶ 11; Defs.’ CSF, ¶

11.) Dr. Wands was the assistant Program Director,

(Dr. Wands Dep., 16:1-6, 17:3-8), and Minzola is now

the assistant Program Director. (Minzola Dep., 11:47.)

The NAP makes up only a small percentage of

Geisinger’s annual budget. (Defs.’ SMF, ¶ 53; Plfs.

CSF, ¶ 53.) For example, in 2012, Geisinger’s overall

budget was $65,485,379, while its annual investment

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in the NAP is approximately $870,979. (Defs.’ SMF,

¶¶ 54-55; Plfs. CSF, ¶ 54-55.) And, while Geisinger

indicates that its net loss on its investment in the

NAP is approximately $749,979 per year, (Defs.’

SMF, ¶ 56), Geisinger leadership desired to develop

the NAP “as a source of recruitment for future nurse

anesthetists to staff the Geisinger entities.” (Richer

Dep., 56:16-19.)

B. Bloomsburg and Geisinger Policies and

Procedures

Bloomsburg’s Department of Nursing prepared a

Graduate Student Handbook for its students seeking

a Master of Science in Nursing. (Plf.’s Ex. 16.) Specifically, the Departmental Code of Academic and Professional Conduct indicates that it applies “to all

student activities on University owned property, any

location affiliated with Bloomsburg University, or in

the community at large.” (Id. at 67.) Under the Alcohol and Substance Abuse Policy, students are required to “comply with the drug and alcohol policies

and drug testing procedures as required by agencies

affiliated with the Department of Nursing.” (Id. at

70.) The Alcohol and Substance Abuse Policy further

states: “[d]epartmental sanctions will be rendered for

a student in the nursing program who . . . refuses to

comply with affiliated agencies drug and alcohol policies and drug screening policies and procedures.”

(Id.) The Handbook also sets forth a “review process”

which is to “be initiated for a student in the nursing

program who has a suspected violation of university,

department, clinical agency alcohol/substance use

and abuse policies . . . .” (Id.)

Section V of the Geisinger Health System/

Bloomsburg University of Pennsylvania Nurse Anesthesia Program Administrative Manual is entitled

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the “Student Nurse Anesthetist Handbook.” (Doc. 82,

122.) The purpose of the Student Nurse Anesthetist

Handbook is to provide a “guide for students intended to promote student understanding of the [NAP]Related policies, procedures and academic/clinical issues.” (Id. at 123.) Among the various policies and

procedures set forth in the Nurse Anesthesia Program Administrative Manual is the “Grievance Procedure,” which defines a grievance as “a complaint by

a student concerning the clinical experiences, didactic evaluation, and/or disciplinary action during

the Student’s period of enrollment in the Clinical

Core Course portion of the Program.” (Id. at 194.)

The Administrative Manual also contains a “Code of

Conduct/Discipline” policy, which provides that the

NAP and Geisinger have established rules and regulations, and that “in the event there is a violation of

one of these rules, we are committed to being reasonable in an attempt to correct the offense.” (Id. at

196.) Under the Code of Conduct/Discipline policy,

the “Faculty Organization” is the agency responsible

for the discipline of students, except in minor instances. (Id.) This policy further enumerates offenses

which are cause for immediate suspension and/or expulsion, one of which is the “unauthorized use, possession or distribution of controlled substances.” (Id.)

The policy provides that it is “the student’s right to

initiate a grievance in the event that there is a disagreement with the decision of the Faculty Organization. Please refer to the Grievance Policy.” (Id.)

Geisinger also has a Drug and Alcohol Policy for

purposes of outlining “Geisinger Health System

standards and procedures for dealing with Alcohol

and Drug use or abuse by employees, . . .” (Plf.’s Ex.

13, 1.) Students are considered to be “Geisinger

Health System Employee[s]” under the Drug and Al-

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cohol Policy. (Id. at 2.) The Drug and Alcohol Policy

provides that no Geisinger Health System Employees

“may use, possess, transport, promote or sell Alcohol,

or any Drug or Drug Paraphernalia while performing

work for Geisinger . . ., while on Geisinger Health

System Premises, . . .” (Id. at 5.) Furthermore,

Geisinger Health System Employees are prohibited

from reporting to work or remaining on duty while

under the influence of or impaired by alcohol or any

drug. (Id.) Geisinger Health System Employees are

obligated under the Drug and Alcohol Policy to comply with substance abuse testing procedures. Those

procedures provide that “[s]uch tests may be administered upon reasonable suspicion of substance

abuse, (this may include situations on a case by case

basis where HR is made aware of alleged

drug/alcohol abuse and deems it as reasonable cause

to test the employee) . . . .” (Id. at 6.). And, “[a]ny

Geisinger Health System Employee who refuses to

cooperate in any aspect of the Drug and/or Alcohol

testing process described in this Policy shall be subject to disciplinary action, including termination, for

a first refusal or any subsequent refusal.” (Id. at 4.)

C. Borrell’s Enrollment, Participation, and

Termination from the NAP

Borrell applied for entrance into the NAP for the

class beginning Fall 2011. (Plf.’s Ex. 74.) Borrell was

accepted into the NAP by letter dated December 10,

2010. (Id.) The acceptance letter was signed by Dr.

Ficca as Graduate Coordinator and Assistant Chairperson3 and Richer as Interim Program Director on

Since 2011, Dr. Ficca has been the Chairperson of the Department of Nursing at Bloomsburg. (Defs.’ SMF, ¶ 29; Plf.’s

CSF, ¶ 29.)

3

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joint Bloomsburg-Geisinger letterhead. (Id.) The only

program within Bloomsburg that Borrell applied for

and was accepted by was the NAP. (Plf.’s Ex. 75, ¶ 7.)

Borrell ultimately started in the NAP in 2011,

(Borrell Dep., 43:13), and her clinical course work

began at Geisinger in May 2012. (Id. at 59:8-10.)

While a student in the NAP, Borrell paid her tuition,

maintained her GPA at approximately 3.63-3.69, and

performed her clinical work appropriately. (Plf.’s

SMF, ¶ 15; Defs.’ CSF, ¶ 15.)

Shortly after Borrell’s class (the class of 2014)

began their clinical work, Dr. Wands noticed that

Borrell would show up to class looking disheveled,

tired, and moody. (Dr. Wands Decl., ¶ 6.) However,

Dr. Wands never documented her observations. (Dr.

Wands Dep., 83:8-22.) Richer also noticed that

Borrell appeared disheveled on a few occasions, but,

like Dr. Wands, he never documented these observations. (Richer Dep., 103:1-23.)

On the evening of September 20, 2012, Monica

Masemer (“Masemer”), a student in the class of 2013,

alerted Dr. Wands that a student would be coming

forward about one of the registered nurses in the

class of 2014. (Defs.’ SMF, ¶ 67; Plfs. CSF, ¶ 67.)

Masemer knew through Justin Young (“Young”), also

a student in the class of 2013, that either Lindsey

Reilly (“Reilly”) or Young would come forward regarding Borrell having a potential drug problem.

(Defs.’ SMF, ¶ 68; Plfs. CSF, ¶ 68.) Reilly had previously spoken with Young, her mentor, about her concern that Borrell was having issues with drug use.

(Defs.’ SMF, ¶ 69; Plfs. CSF, ¶ 69.) Young spoke of

that conversation with Masemer, who then communicated with Dr. Wands. (Defs.’ SMF, ¶ 71; Plfs. CSF,

¶ 71.)

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The next day, Friday, September 21, 2012, Reilly

met with Dr. Wands. (Defs.’ SMF, ¶ 72; Plfs. CSF, ¶

72.) Reilly informed Dr. Wands that she witnessed

Borrell use cocaine once in July 2012. (Reilly Dep.,

9:12-18, 47:13-14.) Reilly also informed Dr. Wands

that Borrell acted erratically the previous weekend

when they were in New York City. (Id. at 46:2247:17.) According to Borrell, Reilly reported this story because the two had gotten into an argument

while they were in New York City. (Borrell Dep.,

156:17-24.)

The same day, Dr. Wands reported what she

learned from Reilly to Dr. Ficca and Richer. (Dr.

Wands Decl., ¶ 18.) Dr. Wands spoke with Dr. Ficca

and Richer at Bloomsburg while the three were preparing to start the interview process for the next

class of anesthesia students. (Dr. Ficca Dep., 50:751:11.) Dr. Wands stated that she had contact with

students who reported to her that they had witnessed Borrell using cocaine and that she acted inappropriately on a weekend trip to New York. (Id. at

51:13-18.)

On Monday, September 24, 2012, Borrell reported as usual to her clinical assignment at Geisinger at

6:00 a.m. (Plf.’s SMF, ¶ 44; Defs.’ CSF, ¶ 44.) Under

the supervision of a certified registered nurse anesthetist, Borrell performed work, including administering anesthesia, on a patient or patients for three

to five hours. (Id.)

Also that morning, Dr. Wands, Richer, and Dr.

Ficca met with Susan Hallick (“Hallick”), Geisinger’s

Executive Vice President, System Chief Nursing Officer, to discuss Reilly’s report of Borrell’s use of cocaine. (Defs.’ SMF, ¶ 77; Plfs. CSF, ¶ 77.) Hallick is

“responsible for ensuring that any matters of signifi-

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cance occurring in the NAP are handled consistently

with GMC and Geisinger Health System’s overall

policies, procedures, and practices.” (Hallick Decl., ¶

7.) The meeting took place in Hallick’s office which

was located at Geisinger. (Ficca Dep., 61:6-9.) At that

meeting, it was decided that Richer should contact

Brion Lieberman (“Lieberman”), Geisinger’s Director

of Human Resources, (Lieberman Dep., 5:8), for further guidance. (Ficca Dep., 63:18-19.) It was also decided at that meeting that Borrell needed to be taken

out of the clinical area and drug tested. (Richer Dep.,

90:17-19.) Richer then met with Lieberman and Dr.

Wands in his office at Geisinger to discuss the allegation that a student had witnessed Borrell using cocaine. (Lieberman Dep., 41:1-19.)

Thereafter, Richer asked Minzola to get Borrell

out of clinical and bring her to his office. (Minzola

Dep., 19:25-20:12.) Borrell was instructed to change

out of her scrubs and bring her personal effects.

(Richer Dep., 116:20-22.)

Beginning at 11:15 a.m., Richer and Lieberman

met with Borrell for approximately one hour in Richer’s office. (Defs.’ SMF, ¶ 81; Plfs. CSF, ¶ 81.) Richer

indicated to Borrell that there were concerns about

changes in her appearance and demeanor, as well as

suspicions of drug use, and that they wanted her to

take a drug test. (Richer Dep., 117:6-18.) Richer and

Lieberman, however, did not inform Borrell that they

had a report that she had been witnessed using cocaine. (Plf.’s SMF, ¶ 54; Defs.’ CSF, ¶ 54.) According

to Richer, Borrell became verbal, “saying a bunch of

things,” and asking for an explanation as to what

was meant by her appearance and demeanor changing. (Richer Dep., 117:16-118:22.) Borrell stated that

she believed she was being discriminated against

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and that she had been under a lot of stress. (Id. at

118:9-22.) And, when Richer explained that they

wanted her to take a drug test, Borrell indicated that

she did not know if she was willing to submit to one.

(Id. at 118:23-25.) Borrell was then permitted to call

her mother at her request. (Id. at 119:8-14.)

Borrell stated that she was refusing to take the

drug test because she did not want her record to

show that she submitted to a drug/urine screen.

(Defs.’ SMF, ¶ 91; Plfs. CSF, ¶ 91.) Although

Lieberman told Borrell that the results would be

kept confidential, she did not believe him. (Defs.’

SMF, ¶ 92; Plfs. CSF, ¶ 92.) Borrell was adamant

that she would not submit to a drug test that day,

but she expressed to Richer and Lieberman that she

might be willing to submit to the drug test another

day after she had time to think about it. (Defs.’ SMF,

¶ 93; Plfs. CSF, ¶ 93.) Lieberman informed Borrell

that testing at a later date was not an option,

(Lieberman Dep., 88:14-18.) And, while Richer maintains that Borrell was made aware that refusal to

take a drug test could result in “consequence[s], up to

and including termination from the program,” (Richer Dep., 121:10-14), Borrell denies that he ever indicated that she could be terminated at that meeting.

(Borrell Dep., 172:8-10.) Rather, Borrell testified that

she was only told that she would “face consequences”

if she did not submit to the drug test. (Borrell Dep.,

192:11-15.) Ultimately, Borrell refused to take the

drug test. (Defs.’ SMF, ¶ 95; Plfs. CSF, ¶ 95.) Following the meeting, Borrell contacted multiple classmates and her sister to tell them about the meeting

and that she refused to take a drug test. (Defs.’ SMF,

¶¶ 107-108; Plfs. CSF, ¶¶ 107-108.) Borrell also contacted Dr. Robert Marande (“Dr. Marande”), the

Dean of the College of Science and Technology at

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Bloomburg, about the request to take a drug test and

her refusal. (Defs.’ SMF, ¶ 109; Plfs. CSF, ¶ 109.)

That evening, a draft letter to Borrell was sent

by email from Lieberman to Richer indicating that

she was not to “report back to the program until further notice,” and that she would be contacted in the

near future to discuss the next steps. (Plf.’s Ex. 41.)

However, Richer testified that by the end of business

on Monday, September 24, 2012, it was decided that

Borrell would be terminated from the program.

(Richer Dep., 161:13-21.)

The next day, Tuesday, September 25, 2012, a

draft letter informing Borrell of her termination from

the NAP was circulated by email between Lieberman, Dr. Ficca, Richer, Dr. Wands, Minzola, and

Brenda Webb. (Plf.’s Ex. 41.) Lieberman, Dr. Ficca,

Richer, and Dr. Wands all provided comments and

suggestions as to the contents of the letter. (Id.)

Richer subsequently sent an email to Ficca and

Lieberman entitled “Final copy . . . font reduced so

that the letter fits on GHS/BUP stationary.” (Id.)

By letter dated September 25, 2012, Borrell was

informed of her termination from the NAP. (Plf.’s Ex.

23.) The letter is on joint Bloomsburg UniversityGeisinger letterhead. (Id.) The letter is signed by

Richer as Director of the NAP, and he indicates in

the letter that Borrell had been informed that she

“would be required to cooperate with a drug test as a

condition of the Nurse Anesthesia Program.” (Id.)

The letter further states: “[a]s a result of your refusal

to comply with the drug test, you are terminated

from the Nurse Anesthesia Program effective September 25, 2012.” (Id.) The letter is also signed by

Dr. Ficca, indicating that she “reviewed the above information and agree[d] with the decision to termi-

37a

nate Angela Borrell from the Nurse Anesthesia Program.” (Id.) Noted on the letter as enclosures are

both the Bloomsburg University Department of

Nursing Student Handbook pages 67 and 70-74, i.e.,

the Departmental Code of Academic and Professional

Conduct, as well as the Geisinger Drug and Alcohol

Policy. (Id.)

Borrell attempted to contact Richer and others at

both Geisinger and Bloomsburg on September 25,

2012 to state her willingness to submit to a drug test.

(Plf.’s SMF, ¶ 63; Defs.’ CSF, ¶ 63; Plf.’s Ex. 25.) In

particular, Borrell, at the instruction of the Dean at

Bloomsburg, emailed Richer indicating her willingness to comply with the drug test request. (Plf.’s Ex.

25.) Richer forwarded that email, stating that if

Borrell “grieves her dismissal, I believe we are going

to be forced to share other information regarding her

witnessed use of cocaine.” (Plf.’s Ex. 41.) Lieberman

responded by noting that “we will need to provide the

information that was available to us to a review

board if she grieves.” (Id.) Despite Borrell’s request,

however, she was not permitted to take a drug test at

that point. (Plf.’s SMF, ¶ 64; Defs.’ CSF, ¶ 64.)

The next morning, Wednesday, September 26,

2012, Richer sent Hallick an email to update her on

what had developed over the previous twenty-four

hours. (Plf.’s Ex. 27.) Richer informed Hallick that he

had meetings with Dr. Marande, Dr. Ficca, and

Lieberman. (Id.) Dr. Ficca had explained the situation to Dr. Marande, and Dr. Marande supported the

decision to terminate Borrell from the program. (Id.)

Richer also informed Hallick that Borrell contacted

Bob Gates, Dean of Graduate Studies, and stated

that “she wanted to file ‘a nonacademic grievance,’ a

process which does not exist.” (Id.) Richer further in-

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dicated to Hallick that Borrell’s access identification

badge had been suspended and that they would take

further steps once she received her termination letter. (Id.)

On September 27, 2012, Borrell sent Dr. Ficca an

email indicating that she wished to appeal her termination from the NAP and requesting the review

process take place and a review panel hearing. (Plf.’s

Ex. 30A.) Borrell stated in her letter that she was

never informed by Lieberman or Richer that she

would be terminated from the program. (Id.) She also

indicated that she attempted to contact Richer the

morning after she refused to submit to a drug test,

but she did not receive a response. (Id.) Thus, she

concluded by “asking for a formal meeting and a formal review process of this decision.” (Id.)

Borrell also contacted a few of her classmates

and informed them she was terminated from the

NAP. (Defs.’ SMF, ¶ 114; Plfs. CSF, ¶ 114.) In addition, Borrell contacted Dr. Marande about her dismissal from the NAP. (Defs.’ SMF, ¶ 115; Plfs. CSF,

¶ 115.) Dr. Marande instructed Borrell that if she

wanted to get the issue resolved, she should contact

Geisinger’s Human Resources Department. (Defs.’

SMF, ¶ 116; Plfs. CSF, ¶ 116.) Dr. Marande informed Borrell about other graduate options that

were available to her because she could not complete

the clinical requirement of the NAP. (Defs.’ SMF, ¶

117; Plfs. CSF, ¶ 117.) Borrell did not want to hear

about those options. (Dr. Marande Dep., 33:12-15.)

However, for Borrell to have pursued one of these

other graduate options, she would have needed to

apply for that specific program, such as the nurse

practitioner program or the community health program. (Dr. Ficca Dep., 89:29-90:4.)

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On Monday, October 1, 2012, Richer sent an

email to Lieberman to inform him that Borrell decided to grieve her termination. (Plf.’s Ex. 28.) Richer

indicated that he had a meeting scheduled with Dr.

Ficca, and, also, that Dr. Ficca had spoken to the

Graduate School Dean and as far as he was concerned, her termination was a “‘non-academic grievance’ of which they do not have a process to deal with

. . . .” (Id.)

On October 2, 2012, Richer emailed Hallick and

Lieberman, informing them that “Bloomsburg University has determined that the student’s termination cannot be grieved since it is a ‘non-academic’

grievance,” and that “the contract between Geisinger

and Bloomsburg indicated that the university abides

by or agrees to support Geisinger’s drug and alcohol

policy,” and the decision to refuse a drug test was in

violation of that policy. (Plf.’s Ex. 29.) By letter dated

October 3, 2012 to Richer and Dr. Ficca, Borrell’s

former counsel demanded an immediate review process/hearing and reinstatement to the NAP. (Plf.’s

Ex. 31.)

On October 4, 2012, Dr. Ficca sent an email to

Lieberman and Richer attaching a draft letter responding to Borrell’s letter sent on September 27,

2012. (Plf.’s Ex. 32.) The draft letter stated that because Borrell refused to submit to the drug test, she

was “no longer eligible to complete your clinical experiences at Geisinger and, thus, you are unable to

complete the requirements of the nurse anesthesia

options of the MSN.” (Id.) The draft letter further

provided that as part of the Department of Nursing’s

affiliation agreements with health care institutions,

students are required to comply with the policies of

the affiliated institutions. (Id.) And, the draft letter

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indicated: “[t]his situation is a non-academic issue

and does not qualify for the grievance procedure at

Bloomsburg University.” (Id.)

Dr. Ficca responded to Borrell by letter dated October 19, 2012. (Plf.’s Ex. 19.) That letter, on Bloomsburg University letterhead, states:

Dear Ms. Borrell:

As part of the Department of Nursing’s affiliation agreements with health care institutions, students and faculty are required to

abide by policies and procedures of the affiliating institutions. Because you refused to

participate in a drug screening test when required on September 24, 2012, you violated

the contractual relationship we have with

Geisinger Medical Center and as a result,

you cannot provide patient care at Geisinger

Medical Center as a student in the nurse anesthesia option of the MSN program. This

situation is a non-academic issue.

(Id.)

On November 8, 2012, Richer sent an email to

the NCBRNA (the National Board of Certification

and Recertification for Nurse Anesthetists). (Plf.’s

Ex. 33.) The email signature block identifies Richer

as “Program Director, Geisinger Health System/Bloomsburg University of PA Nurse Anesthesia

Program.” (Id.) Attached to that email was a completed 2012 Change of Student Status Form for

Borrell. (Id.) That form identifies Borrell’s date of

termination, and provides the following explanation

for termination: “[s]tudent terminated for failure to

comply with a request to submit to a drug test.” (Id.)

Also attached to the Change of Student Status Form

41a

was a copy of the September 25, 2012 letter to

Borrell informing her that she was dismissed from

the NAP. (Id.)

D. Procedural History

Based on the foregoing events, Borrell commenced this action against Dr. Ficca, Bloomsburg,

Richer, and Geisinger by filing a Complaint and Motion for Preliminary Injunction and Temporary Restraining Order on October 24, 2012. (Docs. 1; 2.) After multiple requests to continue the preliminary injunction hearing were granted, (Docs. 10; 13; 15),

Borrell voluntarily dismissed the request for preliminary injunctive relief. (Docs. 16; 18.)

On February 19, 2013, Borrell, through newly retained counsel, filed her Amended Complaint. (Doc.

21.) The Amended Complaint set forth claims for violations of Borrell’s due process and equal protection

rights, as well as state law breach of contract claims.

(Id.) Dr. Ficca, Bloomsburg, Richer, and Geisinger

moved to dismiss the Amended Complaint. (Docs. 29;

32.)

By Memorandum and Order dated June 28,

2013, the motions to dismiss were granted in part

and denied in part. See Borrell v. Bloomsburg Univ.,

955 F. Supp. 2d 390 (M.D. Pa. 2013). The claims

against Bloomsburg, Dr. Ficca in her official capacity, and Richer in his official capacity as an employee

of Bloomsburg were dismissed with prejudice on

Eleventh Amendment grounds. See id. at 399-400.

The breach of contract claims against Dr. Ficca,

Richer, and Geisinger were also dismissed with prejudice for failure to state a claim upon which relief

could be granted. See id. at 407-09. Borrell was permitted, however, to proceed with her due process and

42a

equal protection claims against Geisinger, Dr. Ficca

in her individual capacity, and Richer in his individual capacity. See id. at 410.

The action proceeded to discovery, and following

the close of discovery, the parties filed the instant

motions for summary judgment. Borrell seeks partial

summary judgment as to liability on her procedural

due process claims in Count I of the Amended Complaint. (Doc. 86.) Conversely, Richer and Geisinger

seek summary judgment on both the due process

claims in Count I and the equal protection claim in

Count II of the Amended Complaint. (Doc. 116.) Dr.

Ficca likewise requests summary judgment in her

favor on both Counts I and II of the Amended Complaint. (Doc. 114.) The parties’ motions for summary

judgment have been fully briefed and are ripe for

disposition.

II.

Legal Standard

Summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment

as a matter of law.” Fed. R. Civ. P. 56(a). “Summary

judgment is appropriate when ‘the pleadings, depositions, answers to interrogatories, and admissions on

file, together with the affidavits, if any, show that

there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a

matter of law.’” Wright v. Corning, 679 F.3d 101, 103

(3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71

F.3d 480, 482 (3d Cir. 1995)). A fact is material if

proof of its existence or nonexistence might affect the

outcome of the suit under the applicable substantive

law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

43a

Where there is no material fact in dispute, the

moving party need only establish that it is entitled to

judgment as a matter of law. See Edelman v. Comm’r

of Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). Where,

however, there is a disputed issue of material fact,

summary judgment is appropriate only if the factual

dispute is not a genuine one. Anderson, 477 U.S. at

248, 106 S. Ct. 2505. An issue of material fact is genuine if “a reasonable jury could return a verdict for

the nonmoving party.” Id. Where there is a material

fact in dispute, the moving party has the initial burden of proving that: (1) there is no genuine issue of

material fact; and (2) the moving party is entitled to

judgment as a matter of law. See Howard Hess Denal

Labs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251

(3d Cir. 2010). The moving party may present its

own evidence or, where the non-moving party has

the burden of proof, simply point out to the court

that “the non-moving party has failed to make a sufficient showing on an essential element of her case.”

Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.

2548, 91 L. Ed. 2d 265 (1986).

“When considering whether there exist genuine

issues of material fact, the court is required to examine the evidence of record in the light most favorable

to the party opposing summary judgment, and resolve all reasonable inferences in that party’s favor.”

Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).

Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party’s contention that the facts entitle it to judgment as

a matter of law. Anderson, 477 U.S. at 256-57, 106 S.

Ct. 2505. The Court need not accept mere conclusory

allegations, whether they are made in the complaint

44a

or a sworn statement. Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695

(1990).

“To prevail on a motion for summary judgment,

the non-moving party must show specific facts such

that a reasonable jury could find in that party’s favor, thereby establishing a genuine issue of fact for

trial.” Galli v. New Jersey Meadowlands Comm’n,

490 F.3d 265, 270 (3d Cir. 2007) (citing Fed. R. Civ.

P. 56(e)). “While the evidence that the non-moving

party presents may be either direct or circumstantial, and need not be as great as a preponderance,

the evidence must be more than a scintilla.” Id.

(quoting Hugh v. Butler County Family YMCA, 418

F.3d 265, 267 (3d Cir. 2005)). In deciding a motion

for summary judgment, “the judge’s function is not

himself to weigh the evidence and determine the

truth of the matter but to determine whether there is

a genuine issue for trial.” Anderson, 477 U.S. at 249,

106 S. Ct. 2505.

Where cross-motions for summary judgment are

filed, as is the case here, the summary judgment

standard remains the same. Lawrence v. City of

Phila., 527 F.3d 299, 310 (3d Cir. 2008). Of course,

when presented with cross motions for summary

judgment, the Court must consider the motions separately, see Williams v. Phila. Hous. Auth., 834 F.

Supp. 794, 797 (E.D. Pa. 1993), aff’d, 27 F.3d 560 (3d

Cir. 1994), and view the evidence presented for each

motion in the light most favorable to the nonmoving

party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith

Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.

Ed. 2d 538 (1986).

45a

III. Discussion

Borrell’s claims against Dr. Ficca, Richer, and

Geisinger are brought pursuant to 42 U.S.C. § 1983.

Section 1983 provides that “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage . . . subjects, or causes to be subjected,

any citizen . . . or other person . . . to the deprivation

of any rights, privileges, or immunities secured by

the Constitution and laws, shall be liable to the party

injured, . . .” 42 U.S.C. § 1983. “To establish liability

under 42 U.S.C. § 1983, a plaintiff must show that

the defendants, acting under color of law, violated

the plaintiff’s federal constitutional or statutory

rights, and thereby caused the complained of injury.”

Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005)

(citing Sameric Corp. of Del., Inc. v. City of Phila.,

142 F.3d 582, 590 (3d Cir. 1998)). In this case,

Borrell asserts procedural due process claims for: (1)

deprivation of a property interest in the continuation

of her course of study; and (2) deprivation of a liberty

interest in reputation. Borrell also asserts a “class of

one” equal protection claim.

As indicated, all parties move for summary

judgment on the procedural due process claims,

while only Defendants seek summary judgment on

the equal protection claim. In addition, Richer and

Geisinger contend as a threshold matter that they

are entitled to summary judgment because they were

not acting under color of state law. I will first address the color of state law issue. I will then proceed

to consider, in the following order, Borrell’s equal

protection claim, her deprivation of liberty interest

claim, and her deprivation of property interest claim.

At the outset, however, I note that while the parties’ submissions address in detail the meaning of

46a

the terms of the policies and procedures in the record, i.e., the Department of Nursing Graduate Student Handbook, the Drug and Alcohol Policy, and the

Nurse Anesthesia Program Administrative Manual,

and whether they were followed in this case, the

matter before me for resolution is not Defendants’

compliance (or lack thereof) with these policies and

procedures. See, e.g., Le v. Univ. of Med. & Dentistry

of N.J., 379 F. App’x 171, 175 (3d Cir. 2010) (“A

school’s failure to follow its own policies is not, in itself, a violation of due process. . . . So long as the procedural protections actually provided were sufficient

and fairly administered, due process is satisfied.”).

While the policies and procedures in the record provide relevant background and context underlying the

dispute at bar, because the claims here are brought

pursuant to § 1983, at issue is whether Defendants,

in terminating Borrell from the NAP, violated her

procedural due process and equal protection rights.

A. Under Color of State Law

To prevail on her § 1983 claims, Borrell must

demonstrate that she was deprived of a federal constitutional or statutory right by an individual acting

under color of state law. See Kach v. Hose, 589 F.3d

626, 646 (3d Cir. 2009).4 Richer and Geisinger both

dispute that they acted under color of state law. (Doc.

117, 4-13.)

There is no “simple line” between state and private actors. Brentwood Acad. v. Tenn. Second Sch.

Athletic Ass’n, 531 U.S. 288, 295, 121 S. Ct. 924, 148

4 Actions “under color of law” are considered the equivalent of

“state action” under the Fourteenth Amendment. Leshko v.

Servis, 423 F.3d 337, 339 (3d Cir. 2005).

47a

L. Ed. 2d 807 (2001). And, “[a]lthough little is

straightforward in determining whether a private actor has acted ‘under color of state law,’ one directive

emerges clearly from the Supreme Court’s jurisprudence: the facts are crucial.” Crissman v. Dover

Downs Entm’t Inc., 289 F.3d 231, 234 (3d Cir. 2001)

(en banc); see also Groman v. Twp. of Manalapan, 47

F.3d 628, 638 (3d Cir. 1995) (the state actor “inquiry

is fact-specific”).

In considering Supreme Court precedent, the

Third Circuit has noted that state action cases can be

broadly divided into two factual categories. “The first

category involves an activity that is significantly encouraged by the state or in which the state acts as a

joint participant.” Leshko v. Servis, 423 F.3d 337, 340

(3d Cir. 2005) (citations and emphasis omitted). The

second category “involves an actor that is controlled

by the state, performs a function delegated by the

state, or is entwined with government policies or

management.” Id. (citations and emphasis omitted).

The Third Circuit has thus articulated “three broad

tests” to determine if a private defendant is a state

actor: (1) whether the defendant exercised powers

that are “traditionally the exclusive prerogative of

the state;” (2) whether the defendant acted “with the

help of or in concert with state officials;” or (3)

whether the “state has so far insinuated itself into a

position of interdependence with the acting party

that it must be recognized as a joint participant in

the challenged activity[.]” Kach v. Hose, 589 F.3d

626, 646 (3d Cir. 2009) (citing Mark v. Borough of

Hatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)). And, regardless of which test applies, “the basic question” is

whether Geisinger and Richer’s conduct “can be fairly attributed to the state.” Crissman, 289 F.3d at

239.

48a

To determine whether actions that allegedly

caused the deprivation of a right are fairly attributable to the state, the Supreme Court has set forth a

two-part approach:

First, the deprivation must be caused by the

exercise of some right or privilege created by

the State or by a rule of conduct imposed by

the state or by a person for whom the State is

responsible. Second, the party charged with

the deprivation must be a person who may

fairly be said to be a state actor.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102

S. Ct. 2744, 73 L. Ed. 2d 482 (1982).

In their brief in opposition to Borrell’s motion for

summary judgment, Richer and Geisinger argue that

Borrell fails to satisfy the first Lugar prong because

she was dismissed pursuant to the Drug and Alcohol

Policy, which they characterize as a “private rule of

conduct.” (Doc. 131, 6-7.) However, as explained in

detail below, Borrell was deprived of her due process

rights by, among others, Richer, a joint BloomsburgGeisinger employee, i.e., a person for whom the state

is responsible. See, e.g., Cruz v. Donnelly, 727 F.2d

79, 81 (3d Cir. 1984) (finding first Lugar prong satisfied where the alleged deprivation of constitutional

rights occurred by borough police officers).

Moreover, there is evidence in the record that, for

students participating in the NAP, Bloomsburg

adopted the Drug and Alcohol Policy. Cf. Florer v.

Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,

923 (9th Cir. 2011) (plaintiff failed to offer evidence

that the private defendants “were enforcing a DOC

or governmental policy prohibiting him from consulting with a rabbi or possessing a Torah or calendar, or

49a

that Defendants’ internal policy was adopted by the

DOC.”). In the Collaboration Agreement, Bloomsburg

agreed to advise students in the NAP that they were

“expected to adhere to all applicable policies and

standards of Geisinger,” including the Drug and Alcohol Policy. (Plf.’s Ex. 10.) Additionally, Bloomsburg’s Department of Nursing Graduate Student

Handbook specifically states: “[s]tudents will comply

with the drug and alcohol policies and drug testing

procedures as required by agencies affiliated with

the Department of Nursing.” (Plf.’s Ex. 16, 70.) And,

the Department of Nursing Graduate Student Handbook provides that departmental sanctions will be

rendered for a student in the nursing program who

“refuses to comply with affiliated agencies drug and

alcohol policies and drug screening policies and procedures.” (Id.) Borrell therefore satisfies Lugar’s first

prong. As to the second prong, Borrell relies on the

joint action and entwinement tests to establish state

action.

1. Geisinger acted under color of state law.

The Supreme Court has held that private activity

may be deemed state action when “a private actor

operates as a ‘willful participant in joint activity with

the State or its agents.’” Brentwood Acad., 531 U.S.

at 296, 121 S. Ct. 924 (quoting Lugar v. Edmondson

Oil Co., 457 U.S. 922, 941, 102 S. Ct. 2744, 73 L. Ed.

2d 482 (1982)). And, the Third Circuit has indicated

that the “joint action test” is an appropriate means

by which to examine a private entity’s contractual relationship with the state. See Cahill v. Live Nation,

512 F. App’x 227, 230 (3d Cir. 2013) (citing Tsao v.

Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir.

2012)). “The Supreme Court’s language requiring

joint action or action in concert suggests that some

50a

sort of common purpose or intent must be shown.”

Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 195

(3d Cir. 2005) (citation omitted). “This requirement

can be satisfied either ‘by proving the existence of a

conspiracy or by showing that the private party was

‘a willful participant in joint action with the State or

its agents.’” Tsao, 698 F.3d at 1140 (quoting Franklin

v. Fox, 312 F.3d 423, 445 (9th Cir. 2002)); Harvey,

421 F.3d at 195 (joint action requires that “the private actor at least be a willful participant in joint activity with the state or its agents.”).5

Under the facts and circumstances of this case,

Geisinger acted under color of state law. Here, the

NAP was a collaboration between Bloomsburg and

Geisinger. (Plf.’s Ex. 10.) As part of this collaboration, Bloomsburg provided the academic education,

while Geisinger provided the clinical education to

students in the program. (Id.) For students to finish

the program, both the academic and clinical components needed to be completed. (Id.)

Bloomsburg and Geisinger jointly participated in

operating the NAP. For example, both parties assisted with meeting the accreditation standards for the

program. The admissions criteria for entrance into

the NAP was developed jointly by Bloomsburg and

Geisinger. For each class entering the NAP, Bloomsburg and Geisinger mutually agree as to the size of

the class. Also indicative of joint activity in this case

is that “[b]oth parties shall develop and approve the

Thus, Geisinger is incorrect in asserting that Borrell must

prove a conspiracy to satisfy the “joint action test.” (Doc. 150,

15.) As stated in the text, the “joint action test” can be satisfied

by proof of a conspiracy or by demonstrating willful participation in joint activity with the state.

5

51a

curricula for Students while they are participating in

Clinical Training at Geisinger.” (Id. at ¶ 2.2.) The

guidelines for the Clinical Training portion of the

program were to be developed by both parties and

then incorporated into the Department of Nursing

Graduate Student Handbook.

Likewise, the parties were both obligated to

jointly promote and market the NAP. As part of this

obligation, promotional and marketing material is

subject to the review and approval of both parties,

and the parties equally share the expenses of the

promotional and marketing materials and services.

Bloomsburg and Geisinger also share the tuition and

fees due from students in the NAP, and Bloomsburg

is obligated to pay Geisinger, at the beginning of

each semester, at the rate of fifty percent (50%) of

the billed tuition and related fees. Bloomsburg and

Geisinger, in addition, have joint employees, and, at

least with respect to the Program Director, they both

pay a portion of his salary.

In view of this evidence, Geisinger was a willful

participant in joint activity, the NAP, with Bloomsburg. And, while the Third Circuit has indicated that

“not every partnership or venture with state will result in a finding of state action,” the relationship in

this case suffices to establish action that is “fairly attributable to the state.” Crissman, 289 F.3d at 245

n.18. As detailed, with respect to the operations of

the NAP, both Bloomsburg and Geisinger have obligations and responsibilities, many of which are

shared between the two jointly. In that regard, multiple individuals have been employed jointly by

Bloomsburg and Geisinger, including Richer, Dr.

Wands, and Minzola. Moreover, Bloomsburg and

Geisinger mutually benefit from the program.

52a

Geisinger obtained “a source of recruitment for future nurse anesthetists to staff the Geisinger entities,” (Richer Dep., 56:16-19), while Bloomsburg obtained access to a clinical facility and clinical training to support its academic and educational expertise.

Borrell’s termination from the NAP is also fairly

attributable to the state. Borrell was dismissed from

the collaborative NAP by Richer, an employee of both

Bloomsburg and Geisinger. (Plf.’s Ex. 23.) Borrell

was informed of her dismissal from the NAP by letter

on joint Bloomsburg-Geisinger stationary. That letter reflects Dr. Ficca’s agreement with the decision to

terminate Borrell from the NAP. And, the letter dismissing Borrell from the NAP involved the input of

Bloomsburg, Geisinger, and joint BloomsburgGeisinger employees. (Plf.’s Ex. 41.) Thus, because

Bloomsburg and Geisinger jointly participated in

terminating Borrell from the NAP, Geisinger is a

state actor for that activity.6

6 In its brief in

support of its motion for summary judgment,

Geisinger contends: “[s]imply put, one joint program with one

state university cannot convert all of Geisinger Health system

to a state actor.” (Doc. 117, 11.) Nothing in this opinion suggests that all of Geisinger Health System is a state actor. Rather, as recognized by the Third Circuit in Leshko, this case involves a specific activity, i.e., the collaborative NAP and

Borrell’s dismissal from that program, and whether Geisinger is

a state actor for that activity. See Leshko, 423 F.3d at 340. And,

even in those cases which focus on the actor and not the activity, the Third Circuit made clear that “a successful showing under one of the Supreme Court’s actor-centered cases” does not

make “a private individual or entity an all-purpose state actor.”

Id. at 340 n.2.

53a

2. Richer acted under color of state law.

Although Richer acknowledges that he was jointly employed by both Bloomsburg and Geisinger,

(Plf.’s SMF, ¶ 10; Defs.’ CSF, ¶ 10), he contends that

Borrell is nevertheless unable to show that his “relationship with the state transforms him into a state

actor.” (Doc. 117, 11.) In his brief in support of his

motion for summary judgment, Richer contends that

“[w]ithin the NAP, [he] was not subject to any

Bloomsburg University employee’s supervision . . . .”

(Id. at 12.) Richer also argues that he was not a state

actor despite his relationship with Bloomsburg because: (1) Geisinger paid the majority of his salary;

(2) his salary did not increase once he became a joint

Bloomsburg-Geisinger employee; and (3) he was subject to Geisinger’s policies and supervision regarding

the clinical aspect of the NAP. (Id. at 12.)

There is no genuine issue of material fact that

Richer acted under color of state law. According to

the Supreme Court, “state employment is generally

sufficient to render the defendant a state actor.” Lugar v. Edmondson Oil, Inc., 457 U.S. 922, 935 n.18,

102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). “Thus, generally, a public employee acts under color of state law

while acting in his official capacity or while exercising his responsibilities pursuant to state law.” West

v. Atkins, 487 U.S. 42, 50, 108 S. Ct. 2250, 101 L. Ed.

2d 2250 (1988) (citations omitted). And, whether an

individual is a state actor depends on his function

while working for the state, “not the amount of time

he spends in performance of those duties or the fact

that he may be employed by others to perform similar duties, that determines whether he is acting under color of law.” Id. at 56, 108 S. Ct. 2250 (noting

that the fact that the physician’s employment con-

54a

tract in that case “did not require him to work exclusively for the prison make him any less a state actor

than if he performed those duties as a full-time,

permanent member of the state prison medical

staff.”).

Here, Richer acted under color of state law in regard to his participation in the NAP and the dismissal of Borrell from that program. Richer was a “fulltime employee of Bloomsburg University.” (Richer

Dep., 20:22-23.) At the times relevant to this action,

Richer served as “Program Director,” which was defined as “an employee of both Geisinger and University.” (Plf.’s Ex. 10.) Thus, Bloomsburg and

Geisinger, on their own, designated Richer as a joint

employee. Among other responsibilities, Richer, as

“Program Director,” was required to “oversee the

Program and serve as the liaison between Geisinger

and University relative to the Program.” (Id.) Richer

was also required to “coordinate[ ] all academic and

clinical activities for students in the Program,” and

to “plan[ ], direct[ ], and administer[ ] the School of

Nurse Anesthesia in collaboration with the Chairperson, Department of Nursing at Bloomsburg University of PA.” (Doc. 82, 114.) Richer’s responsibilities also included planning and designing the curriculum, and planning “all instructional activities of the

program to include classroom and clinical instruction

by qualified faculty.” (Id.) The Program Director was

also tasked with developing and maintaining policies

and procedures consistent with the mission statement of the program. (Id.) In view of his functions

and responsibilities as Program Director of the NAP,

Richer was acting under color of state law in regard

to his joint employment with Bloomsburg and

Geisinger.

55a

Moreover, Richer terminated Borrell in his capacity as a joint Bloomsburg-Geisinger employee.

Following Reilly’s report of Borrell’s purported drug

use, Richer communicated with Bloomsburg employees, i.e., Dr. Ficca, joint Bloomsburg-Geisinger employees, i.e., Dr. Wands, and Geisinger employees,

i.e., Hallick and Lieberman, before Borrell was requested to submit to a drug test. After Borrell declined to take a drug test, Richer communicated with

these same individuals discussing her dismissal from

the NAP. On September 25, 2012, the day after

Borrell refused to submit to a drug test, Richer completed a “Statement of Violation of the Departmental

Code of Academic and Professional Conduct Agreement.” (Plf.’s Ex. 18.) By letter that same day, Borrell

was terminated from the NAP. (Plf.’s Ex. 23.) Richer

signed that letter, which was on joint BloomsburgGeisinger letterhead, as “Director, Nurse Anesthesia

Program.” (Id.) Similarly, in Richer’s notification to

the NBCRNA about Borrell’s dismissal from the

NAP, his communication designated him as “Program Director, Geisinger Health System/Bloomsburg

University of PA.” (Plf.’s Ex. 33.) Richer dismissed

Borrell from the NAP while acting as Program Director, i.e., as a joint employee of Geisinger and Bloomsburg. His action is properly attributable to the state,

and he acted under color of state law for purposes of

§ 1983.

B. Equal Protection

Borrell contends that her equal protection rights

were violated in relation to her dismissal from the

NAP. Although Borrell originally asserted this claim

against Dr. Ficca, Richer, and Geisinger, she has

withdrawn her equal protection claim as to Dr. Ficca.

(Doc. 138, 20.) Thus, at issue is whether Richer and

56a

Geisinger are entitled to summary judgment on the

equal protection claim.

The Equal Protection Clause of the Fourteenth

Amendment to the United States Constitution directs that no state shall “deny to any person within

its jurisdiction the equal protection of the laws.” U.S.

Const. amend. XIV, § 1. Borrell’s equal protection

claim is based on a “class of one” theory. The Supreme Court, in Village of Willowbrook v. Olech, 528

U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000),

outlined this theory of equal protection. Under a

“class of one” claim, a plaintiff asserts that “he has

been intentionally treated differently from others

similarly situated and there is no rational basis for

the difference in treatment.” Id. at 564, 120 S. Ct.

1073. To recover on a “class of one” equal protection

claim, Borrell “must, ‘at the very least,’ establish

‘that (1) the defendant[s] treated [her] differently

from others similarly situated, (2) the defendant[s]

did so intentionally, and (3) there was no rational

basis for the difference in treatment.’” Mun. Revenue

Servs., Inc. v. McBlain, 347 F. App’x 817, 825 (3d Cir.

2009) (quoting Hill v. Borough of Kutztown, 455 F.3d

225, 239 (3d Cir. 2006)).

Among other arguments advanced by Richer and

Geisinger, they contend that no reasonable person

could conclude that Borrell was treated worse than a

similarly situated nurse. (Doc. 117, 16-20.)7 According to Richer and Geisinger, Borrell’s comparator

7 Richer and Geisinger also argue that, “as a threshold matter,”

Borrell’s “class of one” claim fails since it is not actionable in

the graduate school context. (Doc. 117, 14-16.) I need not address this issue because Borrell is unable to establish that she

was treated differently than a “similarly situated” individual.

57a

must be “nearly identical,” and she is unable to “provide evidence of other nurses who refused to take a

drug test and were not terminated.” (Id. at 18.) In

that regard, Richer and Geisinger note that the record contains evidence that in the last few years, only

four registered nurses employed by Geisinger have

refused a drug test, and each one was subsequently

terminated. (Id. at 20-21.)

In opposition, Borrell argues that she has identified two comparators. The first comparator relates to

Richer and Geisinger’s involvement with a nurse anesthesia program with a different university in 1985.

(Doc. 137, 13.) A student in that program was caught

stealing narcotics from Geisinger, but was nonetheless permitted to remain in the program. (Id.) That

student also had a change in performance, failed to

perform at the level expected of a student with that

experience, and there were complaints about the attitudes and skills of that student. (Richer Dep.,

248:11-251:4.) Borrell argues, however, that while

there are some differences between herself and that

comparator, they are not fatal to her “class of one”

claim because they demonstrate “that the person

whose actions were far worse and far more dangerous was treated far better than Ms. Borrell.” (Doc.

137, 13-14.)

The second comparator identified by Borrell is

Elizabeth Peterman (“Peterman”), who was a student in the NAP. There were efforts in 2010 by Richer and Geisinger to dismiss Peterman from the NAP

for unsuitability. (Id. at 14.) In response to the

charges of unsuitability, Peterman was provided

with: (1) the opportunity to submit evidence to refute

the claim; (2) information about the procedures related to the dismissal from the program; (3) a meet-

58a

ing so she could learn what was stated against her

and to explain herself; and (4) the option to have a

representative at that meeting. (Id. at 15.) In addition, Peterman attended a meeting with Richer and

Lieberman. And, during that meeting, they were

honest with Peterman about why she was being

charged with unsuitability and they did not withhold

information from her. (Id. at 15-16.) Although Peterman lost the initial hearing, she appealed and was

reinstated to the NAP. (Id. at 16-17.) Borrell argues

that she was similarly situated to Peterman but nevertheless treated differently. Borrell acknowledges

that the stated reasons for termination were different, but this distinction, she contends, is immaterial

because she and Peterman were both in the NAP and

their terminations involved the same parties and

non-parties. (Id. at 17.) And, unlike Peterman who

was afforded ample procedural safeguards, Borrell

was denied notice, a hearing, and any other protections. (Id.) Thus, she concludes that there is sufficient evidence to survive summary judgment on her

equal protection claim.

“Persons are similarly situated under the Equal

Protection Clause when they are alike in all relevant

aspects.” Startzell v. City of Phila., 533 F.3d 183, 203

(3d Cir. 2008) (quotation marks and citation omitted). But, “the law in the Third Circuit does not require [the plaintiff] to show that the [comparators]

are identical in all relevant respects but only that

they are alike.” Southersby Dev. Corp. v. Borough of

Jefferson Hills, 852 F. Supp. 2d 616, 628 (W.D. Pa.

2012) (citing Startzell, 533 F.3d at 203). The Third

Circuit’s recent non-precedential decision in Spiker v

Whittaker, 553 F. App’x 275 (3d Cir. 2014) is instructive on the required similarity between a plaintiff

and his or her comparator to be “similarly situated”

59a

for a “class of one” claim. In Spiker, the plaintiff pled

guilty to two crimes and was required to register as a

sex offender. See id. at 276-77. Twenty-three days after his guilty plea, the plaintiff was arrested for failing to register as a sex offender. See id. at 277. He

registered that same day. See id. The plaintiff was

subsequently arrested and charged with failing to

comply with the registration requirement, but he

was acquitted of that charge. The plaintiff then filed

a civil rights action asserting, among other claims, a

“class of one” equal protection claim. See id. According to the plaintiff, “twenty other unregistered sex offenders were not arrested or prosecuted- they were

simply prompted to register.” Id. at 280. The Third

Circuit rejected the plaintiff’s claim because he failed

to show the comparators were similarly situated. Id.

at 280-81. The court noted that nineteen of his comparators were convicted of different crimes, and the

only comparator that was convicted of one of the

same crimes as the plaintiff registered thirteen days

sooner. Id. Thus, the Third Circuit concluded that

the plaintiff failed to establish that he was unreasonably discriminated against and that the equal

protection claim failed. See id. at 281.

In view of the degree of similarity required between a plaintiff and his or her comparator to make

out a “class of one” claim, I agree with Richer and

Geisinger that Borrell fails to demonstrate that either of her comparators are “alike in all relevant aspects.” With respect to the first comparator cited by

Borrell, that student was involved in a different program with a different university. That student admitted that he had a drug problem and sought

treatment after he was confronted about stealing

narcotics. Upon completion of substance abuse counseling, that student was permitted to return to the

60a

program. Borrell, on the other hand, was dismissed

for failure to submit to a drug test, and her drug use

or non-use is not at issue in this litigation. Thus, the

only respect in which Borrell is similar to this comparator is that they were both students in nursing

programs involving Geisinger and Richer. That,

however, is too broad to satisfy the similarly situated

requirement for a “class of one” claim.

Borrell is also not like her second comparator,

Peterman, in all relevant aspects. Whereas Peterman’s termination proceedings followed from a

charge of unsuitability, Borrell was subject to termination from the NAP for failure to submit to a drug

test. Thus, even though Borrell and Peterman were

both students in the NAP facing termination from

the program, these similarities do not render Borrell

and Peterman “similarly situated” for purposes of a

“class of one” claim.

Rather, to be “similarly situated,” Borrell would

need to demonstrate that she was treated differently

from another student who also refused to submit to a

drug test. Or, at the least, Borrell would need to

identify an individual that was treated more favorably than her despite refusing to comply with a NAP

policy upon request. Borrell has not identified such a

comparator in this case. Moreover, the record

demonstrates that in the last few years, four registered nurses employed by Geisinger have refused a

drug test. These nurses were all subsequently terminated. (Defs.’ SMF, ¶ 51; Plf.’s CSF, ¶ 51.) Thus, because Borrell fails to demonstrate that Richer and

Geisinger treated her differently from others “similarly situated,” she is unable to establish a “class of

one” claim. Richer and Geisinger are entitled to

summary judgment on the equal protection claim.

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C. Procedural Due Process

Borrell also asserts that her procedural due process rights were violated with regard to her termination from the NAP. Borrell contends that she was

deprived of both liberty and property interests without due process of law.

The Fourteenth Amendment to the United States

Constitution provides, in pertinent part, that a state

shall not “deprive any person of life, liberty, or property, without due process of law; . . .” U.S. Const.

amend. XIV, § 1. To establish a procedural due process claim under § 1983, Borrell must prove (1) a

deprivation of an individual interest encompassed by

the Fourteenth Amendment’s protection of life, liberty, or property, and (2) that the procedures available

did not provide due process of law. See Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.

2006).

All parties seek summary judgment on both

Borrell’s procedural due process deprivation of property interest claim and deprivation of liberty interest

claim, i.e., her stigma-plus claim. The stigma-plus

claim will be addressed first.

1. Liberty Interest Claim

Borrell asserts that she was deprived of her liberty interest in reputation in violation of the Due

Process Clause when she was terminated from the

NAP. The Supreme Court held in Wisconsin v.

Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed.

2d 515 (1971) that an individual has a protectable interest in reputation. “Where a person’s good name,

reputation, honor, or integrity is at stake because of

what the government is doing to him, notice and an

opportunity to be heard are essential.” Id. at 437, 91

62a

S.Ct. 507. Courts “subsequently clarified, however,

that ‘reputation alone is not an interest protected by

the Due Process Clause.’” Hill v. Borough of

Kutztown, 455 F.3d 225, 236 (3d Cir. 2006) (quoting

Versarge v. Twp. of Clinton, 984 F.2d 1359, 1371 (3d

Cir. 1993)). “Rather, to make out a due process claim

for deprivation of a liberty interest in reputation, a

plaintiff must show a stigma to his reputation plus

deprivation of some additional right or interest.” Id.

(citing Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct.

1155, 47 L. Ed. 2d 405 (1976)). “This has been referred to as the ‘stigma-plus’ test.” Dee v. Borough of

Dunmore, 549 F.3d 225, 233-34 (3d Cir. 2008).

To satisfy the “plus” prong of the stigma-plus

test, a plaintiff must demonstrate an “alteration or

extinguishment of ‘a right or status previously recognized by state law.’” Hill, 455 F.3d at 237 (quoting

Paul v. Davis, 424 U.S. 693, 711, 96 S. Ct. 1155, 47

L. Ed. 2d 405 (1976)). A constitutionally protected

property interest can qualify as a sufficient “plus.”

Dee, 549 F.3d at 234. Because Borrell had a protected property interest in the continuation in her course

of study in the NAP as described in detail below, she

has established the “plus” prong of her stigma-plus

claim.

“In order to satisfy the ‘stigma’ prong, a plaintiff

must show (1) that the stigmatizing statement was

made publically, and (2) that the statement was substantially and materially false.” Kocher v. Larksville

Borough, 548 F. App’x 813, 820 (3d Cir. 2013) (citing

Hill, 455 F.3d at 236); Ersek v. Twp. of Springfield,

102 F.3d 79, 83-84 (3d Cir. 1996) (“For government

action to infringe the ‘reputation, honor, or integrity’

of an individual, that government action first must

involve a publication that is substantially and mate-

63a

rially false.”). Because the “stigma” prong requires

that the publication must be false, “[a] truthful

statement that damages one’s reputation simply does

not trigger any constitutional concerns.” McCarthy v.

Darman, No. 07-3958, 2009 WL 1812788, at *10

(E.D. Pa. June 24, 2009), aff’d, 372 F. App’x 346, 351

(3d Cir. 2010).

The stigmatizing statements in this case, according to Borrell, were made public in the email sent by

Richer attaching the 2012 Change of Student Status

Form and supporting documentation to the

NBCRNA. (Plf.’s Ex. 33.)8 In her brief in support of

her motion for summary judgment, Borrell acknowledges that “technically, each individual statement in

Plaintiff’s Exhibit 33 is true.” (Doc. 87, 12.) Borrell

nevertheless argues that the “implications” in that

exhibit and the “facts omitted” from it render it materially false. (Id. at 12-13.) Borrell goes on to state

that “literal truth does not make defendants’ statements to the NBCRNA to be true.” (Id. at 14.)

Dr. Ficca, on the other hand, argues that because

Richer’s notification to the NBCRNA was “substantially true,” Borrell is unable to satisfy the “stigma”

prong. (Doc. 130, 89.) Richer and Geisinger likewise

argue that the notification to the NBCRNA does not

evidence any false statements.

Defendants’ motions for summary judgment on

the liberty interest claim will be granted and

Borrell’s motion will be denied because Borrell is unable to establish the “stigma” prong of the claim.

8 In her Amended Complaint, Borrell also alleged that Defen-

dants deprived her of her liberty interest by falsely publicizing

that she used controlled substances. Borrell has since abandoned any claim putting her use or non-use of drugs at issue.

64a

Richer’s communication to the NBCRNA indicates

that: (1) Borrell was terminated for failure to comply

with a request to submit to a drug test; (2) the test

was requested as a result of concerns regarding

changes in her appearance and demeanor; (3) Borrell

was told that she was required to cooperate with a

drug test as a condition of the NAP; and (4) Borrell

was informed that returning at a later time to submit to a drug test was not an option. (Plf.’s Ex. 33.)

Although Borrell argues that this communication

failed to disclose, among other information, that she

was not required to take a test under the terms of

the Drug and Alcohol Policy, there is nothing stated

in the documentation sent to the NBCRNA that was

not true. Indeed, Borrell concedes that all of the

statements contained in those documents are “technically” true. As such, these “statements do not show

a stigma because they were not false.” McCarthy, 372

F. App’x at 351 (publication on the internet of borough meeting minutes was not stigmatizing because

the plaintiff was suspended and the defendants were

engaged in an on-going investigation). Defendants

are therefore entitled to summary judgment on the

stigma-plus claim.

2. Property Interest Claim

Borrell also sets forth a due process claim based

on the contention that she was deprived of her property interest in the continuation of her course of

study without due process of law when she was terminated from the NAP. All parties seeks summary

judgment on this claim.

65a

a.

Borrell had a property interest in

the continuation of her study in the

NAP.

For purposes of procedural due process, courts

looks to state law to determine whether a property

interest exists. Dee v. Borough of Dunmore, 549 F.3d

225, 229 (3d Cir. 2008) (citing Board of Regents v.

Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L. Ed. 2d

548 (1972) (“Property interests are not created by the

Constitution. Rather they are created and their dimensions are defined by existing rules or understandings that stem from an independent source

such as state law.”)). As I stated in denying Defendants’ motion to dismiss Borrell’s procedural due

process property interest claim, “[c]ourts in the Third

Circuit have repeatedly recognized that a graduate

student has a property interest protected by procedural due process in the continuation of his or her

course of study under Pennsylvania law.” Borrell v.

Bloomsburg Univ., 955 F. Supp. 2d 390, 402 (M.D.

Pa. 2013) (citing Coulter v. East Stroudsburg Univ.,

No. 10-CV-0877, 2010 WL 1816632, at *2 (M.D. Pa.

May 5, 2010); Manning v. Temple Univ., No. Civ. A.

03-4012, 2004 WL 3019230, at *8 (E.D. Pa. Dec. 30,

2004); Stoller v. College of Medicine, 562 F. Supp.

403, 412 (M.D. Pa. 1983); Ross v. Pennsylvania State

Univ., 445 F. Supp. 147, 153 (M.D. Pa. 1978)); see also Abernathy v. Indiana Univ. of Pa., No. 12-1119,

2013 WL 3200519, at *1 (W.D. Pa. June 18, 2013)

(“the Court disagrees with Defendants’ argument

that Plaintiff cannot state a 42 U.S.C. § 1983 claim

predicated on a Fourteenth Amendment due process

violation when he was dismissed from the IUP graduate program in which he was enrolled because he

has not demonstrated that he has a property interest

in his education protected by the Fourteenth

66a

Amendment, nor that he was denied any process that

may have been due.”); Osei v. Temple Univ. of Commonwealth Sys. of Higher Educ., No. 10–2042, 2011

WL 4549609 (E.D. Pa. Sept. 30, 2011) aff’d sub nom.

Osei v. Temple Univ.,581 F. App’x 86 (3d Cir. 2013).

Accordingly, I held that Borrell had a protected

property interest in the continuation of her course of

study in the NAP under Pennsylvania law. See

Borrell, 955 F. Supp. 2d at 402-03.

Defendants urge that I revisit this holding in

light of evidence obtained during discovery. Richer

and Geisinger argue that any due process right

Borrell had in her graduate education was limited

solely to the degree at issue, and only Bloomsburg

could award that degree. (Doc. 117, 23-25.) Geisinger

and Richer define Borrell’s property right too narrowly. Indeed, this Court in Ross held that the student at issue in that case “had a property interest in

the continuation of his education as a graduate student in the ceramics program at Penn State.” Ross,

445 F. Supp. at 153 (emphasis added); see also

Borrell, 955 F. Supp. 2d at 403 (“Borrell had a property interest in her continued participation in the

Nurse Anesthesia Program.”); Osei, 2011 WL

4549609, at *7 (student’s interest is in “pursuing or

continuing an education”). Furthermore, this argument essentially repeats Geisinger’s claim that it did

not act under color of state law. But, as stated,

Geisinger is a state actor by virtue of its collaboration and “willful participation in joint activity” with

Bloomsburg in the NAP.

Dr. Ficca also asks that I reconsider the finding

that Borrell had a protected property interest in the

continuation of her study in the NAP. In that regard,

although she contends that additional facts revealed

67a

in discovery indicate that the property interest issue

should be revisited, she relies on the same premise

that I found unconvincing in denying her motion to

dismiss: Borrell’s termination from the NAP did not

impact a property interest because she could have

still (theoretically) pursued a MS degree in Nursing

from a different Bloomsburg program. (Doc. 119, 5.)

As I previously explained in this litigation, it is irrelevant that Borrell may have been able to pursue a

different degree from a Bloomsburg nursing program. See Borrell, 955 F. Supp. 2d at 403. Discovery

has only reinforced that Borrell had a property interest in the continuation of her study in the NAP.

Borrell applied and was accepted into the NAP, she

enrolled in the program, she participated in the program, and she paid her tuition. Moreover, according

to Dr. Ficca, in order for Borrell to obtain a MS degree from a different nursing program, such as the

nurse practitioner program or the community health

program, she would have needed to apply for that

specific program. (Dr. Ficca Dep., 89:23-90:4.)

Borrell’s property interest was in the continuation of

her course of study in the NAP.

Lastly, I will briefly address Dr. Ficca’s argument that Borrell does not have a property interest

pursuant to this Court’s statement in Ross that

graduate students have “a reasonable expectation

based on statements of policy by [the university] and

the experience of former students that if [they] perform[ ] the required work in a satisfactory manner

and pay[ ] [their] fees [they] will receive the degree

[they] seek[ ].” Ross v. Pennsylvania State Univ., 445

F. Supp. 147, 153 (M.D. Pa. 1978). In view of this

passage, Dr. Ficca contends that Borrell, as a result

of her refusal to submit to a drug test, “could not perform the work required because she could no longer

68a

provide patient care at GMC and therefore she could

not complete the required clinical training.” (Doc.

119, 8.) Thus, Dr. Ficca concludes that “because

plaintiff could not perform the work required for the

NAP, she does not have a property interest in obtaining that degree.” (Id.) Or, as she states in her reply

brief in further support of her motion for summary

judgment, “[t]he threshold requirement in order to

establish a property interest to a graduate degree is

to be able to perform the required work, which

Borrell could not do.” (Doc. 149, 15.)

Dr. Ficca’s argument is flawed. Borrell enrolled

in the NAP in 2011, and there is nothing in the record suggesting that Borrell was unable to perform

the required work in the NAP at that time, or at any

point thereafter, up and until September 24, 2012.

As such, it is unclear what Dr. Ficca means when she

states that Borrell was unable to satisfy the “threshold requirement” of performing the required work

when she complied with the program’s requirements

for over one year. Thus, Dr. Ficca appears to suggest

that Borrell had a property interest while she performed satisfactorily in the NAP, here from 2011 until September 24, 2012. But, as of September 24,

2012, the point in which Borrell refused to submit to

a drug test, Dr. Ficca implies that this interest was

somehow extinguished and Borrell no longer had a

viable property interest.9 This premise is incon9 Dr. Ficca’s submissions could also be interpreted as suggesting

that because Borrell was unable to meet the program’s requirements in September 2012, she never had a property interest in the continuation of her course of study. However, this position ignores the salient fact that Borrell participated in the

NAP and satisfied the program’s requirements for well over a

year before she refused to submit to a drug test. And, since the

69a

sistent with the concept of procedural due process

and the analysis of such claims. Cf. Schmidt v.

Creedon, 639 F.3d 587, 595 (3d Cir. 2011) (“A procedural due process claim is subject to a two-stage inquiry: (1) whether the plaintiff has a property interest protected by procedural due process, and (2) what

procedures constitute due process of law.”) Here, because Borrell had a property interest in the continuation of her course of study once she became a student in the NAP, the question becomes whether the

procedures afforded Borrell in relation to the deprivation of that interest satisfied the requirements of

the Due Process Clause of the Fourteenth Amendment.

b.

Borrell’s termination from the NAP

was a disciplinary dismissal.

Since Borrell had a protected property interest in

the continuation of her education in the NAP, “the

question then becomes what process is due to protect

it.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000)

(citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.

Ct. 2593, 33 L. Ed. 2d 484 (1972)). In this case, the

amount of process due depends on whether Borrell’s

dismissal from the NAP was “academic” or “disciplinary.”

The Supreme Court addressed the due process

rights of students in state operated universities in

Board of Curators of the University of Missouri v.

possibility always exists that a student will be unable to perform the required work or meet the requirements of a course of

study (for any of a variety of reasons) during the pendency of

the course or program, accepting Dr. Ficca’s position would be

the equivalent of finding that a graduate student does not have

a protected property interest in the continuation of his or her

course of study. Pennsylvania law, however, holds otherwise.

70a

Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124

(1978), and Regents of the University of Michigan v.

Ewing, 474 U.S. 214, 106 S. Ct. 507, 88 L. Ed. 2d 523

(1985). In Horowitz, the Supreme Court distinguished between academic and disciplinary dismissals from educational institutions. See Horowitz, 435

U.S. at 89-90, 98 S. Ct. 948. The Court concluded

that the dismissal of the medical student in that case

was academic and not disciplinary because it “rested

on the academic judgment of school officials that she

did not have the necessary clinical ability to perform

adequately as a medical doctor and was making insufficient progress toward that goal.” Id. An academic dismissal, according to the Court:

is by its nature more subjective and evaluative than the typical factual questions presented in the average disciplinary decision.

Like the decision of an individual professor

as to the proper grade for a student in his

course, 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 decision

making.

Id. at 90, 98 S. Ct. 948. The Horowitz Court further

stated that the determination of whether the student

would “make a good doctor” could take into account

personal attributes of the student, in that case her

personal hygeine and ability to keep a clinical schedule. Id. at 91 n.6, 98 S. Ct. 948.

The Horowitz Court explained that disciplinary

dismissals, conversely, involve “the violation by a

student of valid rules of conduct” or “disruptive and

insubordinate behavior.” Horowitz, 98 S. Ct. 86, 90,

71a

98 S. Ct. 948. As a result, “[t]here is a clear dichotomy between a student’s due process rights in disciplinary dismissals and in academic dismissals,” id. at

88 n.4, 98 S. Ct. 948, and the difference between the

two “calls for less stringent procedural requirements

in the case of an academic dismissal.” Id. at 86, 98 S.

Ct. 948.

The parties dispute whether Borrell’s dismissal

from the NAP was academic or disciplinary. Whereas

Defendants classify Borrell’s dismissal as academic

because she could not fulfill the clinical requirement

necessary to complete the NAP, Borrell contends

that her dismissal was disciplinary and Defendants

always treated her dismissal as “nonacademic.”

There is no bright-line test for determining

whether a dismissal is academic or disciplinary in

nature. See Fuller v. Schoolcraft Coll., 909 F. Supp.

2d 862, 874 (E.D. Mich. 2012). And, “the mere fact

that faculty base their decision on a student’s conduct rather than test results is insufficient to establish that the decision was disciplinary rather than

academic.” Simmons v. Wayne Cnty. Cmty. Coll., No.

11-14936, 2014 WL 764632, at *5 (E.D. Mich. Feb.

24, 2014); Ku v. State of Tenn., 322 F.3d 431, 436

(6th Cir. 2003) (“there can also be no doubt that in

the context of medical school, academic evaluations

are not limited to consideration of raw grades or other objective criteria.”). Instead, “federal courts have

found an academic dismissal where a student’s

scholarship or conduct reflects on the personal qualities necessary to succeed in the field in which he or

she is studying and is based on at least partially subjective appraisal of those qualities.” Allahverdi v. Regents of the Univ. of N.M., No. 05-277, 2006 WL

1313807, at *11-14 (D.N.M. Apr. 25, 2006) (citing

72a

Horowitz, 435 U.S. at 91 n. 6, 98 S. Ct. 948; Fenje v.

Feld, 398 F.3d 620, 625 (7th Cir. 2005); Hennessy v.

City of Melrose, 194 F.3d 237, 242-43, 251 (1st Cir.

1999); Firester v. Board of Governors of Wayne State

Univ., No. 89-1772, 1990 WL 99493, at *2-3 (6th Cir.

July 18, 1990)). Disciplinary dismissals, in comparison, “are objective in nature and relate to rules of

conduct rather than a student’s professional abilities.” Id. at *14. Accordingly, “an academic institution imposes a disciplinary dismissal in the more

limited situation where a student has violated the

rules of conduct that the educational institution has

set forth and is based on an objective appraisal of the

student’s conduct.” Id. This is in accord with the

Third Circuit’s decision in Mauriello, where the court

stated that it had “no difficulty” in finding a student’s dismissal from a doctoral program to be academic and not disciplinary because “it was not a case

of her being compelled by rule, order, or law of the

school to do something and not having done it getting

discharged. This is not a case of somebody being disruptive in her misconduct, . . . .” Mauriello v. Univ. of

Med. & Dentistry of N.J., 781 F.2d 46, 50 (3d Cir.

1986) (internal alteration omitted). Rather, the dismissal was academic because “[t]he focus of the University’s inquiry was on the quality of the plaintiff’s

research and her dedication to academic pursuits,

not misconduct.” Id.

In light of this authority, Borrell’s dismissal from

the NAP was disciplinary and not academic in nature. First, the decision to dismiss Borrell from the

NAP was not based on any subjective evaluations.

Defendants did not focus their inquiry on Borrell’s

academic abilities, her personal qualities, or whether

she could succeed as a nurse anesthetist. Rather,

Borrell’s dismissal is better characterized as a prod-

73a

uct of misconduct. Specifically, Borrell, according to

Defendants, was required to submit to a drug test

when it was requested on September 24, 2012. When

she refused to submit to a drug test, she was terminated from NAP. Thus, pursuant to the reasoning in

Mauriello, Borrell was dismissed because she was

obligated by rule of the program to take a drug test,

and having not submitted to a drug test, she was

dismissed from the NAP.10

Second, the characterization of Borrell’s termination from the NAP immediately following her dismissal by Bloomsburg, Geisinger, and joint BloomsburgGeisinger employees supports a finding that her

dismissal was disciplinary in nature. For example,

on Wednesday, September 26, 2012, the day after

she was terminated from the NAP, Richer informed

Hallick that Borrell “wanted to file ‘a non-academic

grievance’, a process which does not exist.” (Plf.’s Ex.

27.) Richer emailed Lieberman on October 1, 2012,

instructing him that Borrell’s attempt to grieve her

termination from the program was a “‘nonacademic’

grievance of which they do not have a process to deal

with.” (Plf.’s Ex. 28.) By email to Hallick and

Lieberman on October 2, 2012, Richer again stated

that Borrell could not grieve her termination because

it was “non-academic.” (Plf.’s Ex. 29.) Dr. Ficca sent

an email on October 4, 2012 to Lieberman and Richer. Attached to that email was a draft letter to

Borrell, which stated, in pertinent part, that “[t]his

situation is a non-academic issue and does not quali10 And, as discussed, the Drug and Alcohol Policy was adopted

as a rule for students in the program. (Plf.’s Ex. 16, 70

(“[s]tudents will comply with the drug and alcohol policies and

drug testing procedures as required by agencies affiliated with

the Department of Nursing.”).)

74a

fy for the grievance process at Bloomsburg University.” (Plf.’s Ex. 32.) And, by letter to Borrell dated October 19, 2012, Dr. Ficca stated: “This situation is a

nonacademic issue.” (Plf.’s Ex. 19.) Likewise, Dr.

Marande testified that Borrell’s particular case involved a “non-academic issue.” (Dr. Marande Dep.,

68:2-6.) Thus, Defendants’ own admissions indicate

that Borrell was not dismissed from the NAP for academic reasons.

Third, while Dr. Ficca claims that the dismissal

was academic because Borrell “simply could not fulfill the particular curriculum requirements of a degree program” following her refusal to submit to a

drug test (Doc. 130, 18), Borrell was only unable to

complete the requirements of the NAP after she had

been terminated from the clinical portion of the program. As Defendants admit, Borrell’s termination

“from the clinical portion of the NAP was a termination from the entire NAP.” (Plf.’s SMF, ¶ 68; Defs.’

CSF, ¶ 68.) Borrell’s dismissal from the NAP was

disciplinary in nature.

c.

Borrell was dismissed from the

NAP without due process of law.

In cases such as this where the property interest

at issue is a student’s continuation of his or her

course of study, the level of due process required depends on whether the dismissal is for academic or

disciplinary reasons. For academic dismissals, the

Third Circuit has stated that “courts are generally

ill-equipped to review subjective academic appraisals

of educational institutions, and admonished courts to

permit university faculties a wide range of discretion

in making judgments as to the academic performance of students.” Hankins v. Temple Univ., 829

F.2d 437, 444 (3d Cir. 1987) (citations omitted). As

75a

such, “when a student is discharged for academic

reasons, an informal faculty evaluation is all that is

required.” Id. at 445 (citing Mauriello v. Univ. of

Med. & Dentistry of N.J., 781 F.2d 46, 51 (3d Cir.

1986)). Conversely, with respect to a student’s suspension for ten days or less from a public school for

disciplinary reasons, the Supreme Court has held

that “the student [must] be given oral or written notice of the charges against him and, if he denies

them, an explanation of the evidence the authorities

have and an opportunity to present his side of the

story.” Goss v. Lopez, 419 U.S. 565, 581, 95 S. Ct.

729, 42 L .Ed. 2d 725 (1975) (suspension of high

school students). As such, in those cases, the student

is entitled “‘to an informal give-and-take’” with the

administrative body so the student has “‘the opportunity to characterize his conduct and put it in what

he deems the proper context.’” Horowitz, 435 U.S. at

85-86, 98 S. Ct. 948 (quoting Goss, 419 U.S. at 584,

95 S. Ct. 729).

The deprivation to which Borrell was subjected

in this case, though, was more severe than the tenday high-school suspension in Goss. And, the Goss

Court noted that the severity of the deprivation “may

require more formal procedures.” Goss, 419 U.S. at

584, 95 S. Ct. 729; accord Horowitz, 435 U.S. at 86

n.3, 98 S. Ct. 948 (“the severity of the deprivation is

only one of several factors that must be weighed in

deciding the exact due process owed.”). As a result,

“those cases considering the adequacy of notice and

hearing procedures in the context of graduate student deprivations have dealt with procedural requirements significantly more extensive than those

described in Goss.” Pugel v. Bd. of Tr. of the Univ. of

Ill., 378 F.3d 659, 664 (7th Cir. 2004) (citing Than v.

Univ. of Texas Med. Sch. at Houston, 188 F.3d 633,

76a

635 n.2 (5th Cir. 1999); Crook v. Baker, 813 F.2d 88,

97 (6th Cir.1987); Nash v. Auburn Univ., 812 F.2d

655, 660-61 (11th Cir. 1987); cf. Hall v. Med. Coll. of

Ohio at Toledo, 742 F.2d 299, 308-09 (6th Cir.1984));

see also Woodis v. Westark Cmty. Coll., 160 F.3d 435,

440 (8th Cir. 1998) (“procedural due process must be

afforded a student on the college campus by way of

adequate notice, definite charge, and a hearing with

opportunity to present one’s own side of the case and

with all necessary protective measures.”). In that regard, when a student is dismissed or expelled for disciplinary reasons, a court should balance the

Mathews factors to determine if the student is entitled to procedural protections beyond those required

under Goss. See Allahverdi, 2006 WL 1313807, at

*11,*19 (citing Mathews v. Eldridge, 424 U.S. 319,

335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)); see also Le

v. Univ. of Med. & Dentistry of N.J., 379 F. App’x

171, 174-75 (3d Cir. 2010) (citing Mathews and concluding that disciplinary proceedings resulting in the

dismissal of student from dental school satisfied due

process requirements where the procedure included

“a hearing before a panel of students and faculty, the

right to present witnesses and evidence, the right to

cross examine witnesses, a lay adviser in the room,

an attorney outside the hearing room, two levels of

appeal (during one of which he was represented by

counsel), and the opportunity to submit further evidence after the hearing.”). Recently, Judge Brann of

this Court emphasized that “[d]isciplinary dismissals

must be preceded by, at least, notice to the student of

the charges against her, an explanation of evidence

underlying the charges, and an opportunity for the

student to present her side of the story.” Valentine v.

Lock Haven Univ., No. 13-523, 2014 WL 3508257, at

77a

*7 (M.D. Pa. July 14, 2014) (citing Palmer v.

Merluzzi, 868 F.2d 90, 93 (3d Cir.1989)).

Defendants contend that Borrell’s due process

rights were not violated here because she was provided all process due. Dr. Ficca argues that the only

process due in this case was an “informal-give-andtake” between the student and the administrative

body, which, Dr. Ficca claims, took place. (Doc. 119,

11-15.) Specifically, Borrell “was afforded the level of

process that she was due because she had informal

discussions with GMC and Bloomsburg before her

dismissal from the NAP.” (Id. at 11.) Dr. Ficca also

contends that post-termination communications between herself and both Dr. Marande and Borrell satisfied Borrell’s due process rights. (Id. at 13-14.) In

comparison, Richer and Geisinger maintain that

Borrell’s failure to avail herself of the state procedures provided by Pennsylvania’s Administrative

Agency Law forecloses her due process claim. (Doc.

117, 25-27.)

Here, I will assume that Borrell was entitled to

only notice of the charges against her, an explanation of evidence underlying the charges, and an opportunity to present her side of the story, i.e., the

procedures outlined in Goss. And, because both

Borrell and Defendants move for summary judgment

on the deprivation of property interest claim, I must

consider the evidence presented by each in the light

most favorable to the non-moving party. In considering Borrell’s motion for partial summary judgment

and viewing the evidence in the light most favorable

to Dr. Ficca, Richer, and Geisinger, there is no genuine issue that Borrell’s dismissal from the NAP occurred without due process of law.

78a

The decision to terminate Borrell from the NAP,

according to Richer, was made by the end of business

on Monday, September 24, 2012, the day she refused

to submit to the drug test. (Richer Dep., 161:13-21.)

The letter terminating Borrell from the NAP was

dated September 25, 2012 and indicated that her

dismissal was effective that day. (Plf.’s Ex. 23.) As a

result, Borrell was deprived of her property interest

in the continuation of her course of study, at the latest, on September 25, 2012.

Dr. Ficca, however, asserts that prior to Borrell’s

dismissal on September 25, 2012, an “informal-giveand-take” with the administrative body satisfying

Borrell’s due process rights took place. I disagree.

For one, Borrell’s discussion with Richer and

Lieberman on September 24, 2012 did not satisfy the

requirements of due process. That meeting was

called, according to Richer, to address concerns about

changes in Borrell’s appearance and demeanor and

suspicions of drug use, and, also, to inform her that

they wanted her to take a drug test. (Richer Dep.,

117:6-18.) After indicating her hesitancy to submit to

a drug test that day, the parties discussed the possibility that Borrell could face consequences. The parties dispute whether termination from the NAP was

discussed as a consequence for refusing to submit to

a drug test. But, it is irrelevant whether dismissal

was discussed as a potential consequence at that

meeting. The meeting was about Borrell submitting

to a drug test under the Drug and Alcohol Policy.11

11 I recognize Borrell’s contention that she was not required to

submit to a drug test under the terms of the policy. But, as

stated in the text, resolution of whether reasonable suspicion

existed to request a drug test is not the issue before me.

79a

That meeting was not about whether Borrell, at the

time, was subject to termination from the NAP, and

she had no notice before the meeting of the charges

against her.

Furthermore, Dr. Marande’s telephone conversation with Borrell on September 24, 2012 did not satisfy the requirements of due process outlined in Goss

and Horowitz. Borrell spoke with Dr. Marande to inform him that she was requested to take a drug test

but she refused. (Defs.’ SMF, ¶ 109; Plf.’s CSF, ¶

109.) Borrell also indicated to Dr. Marande at that

time that she was now willing to comply with the

drug test. (Defs.’ SMF, ¶ 110; Plf.’s CSF, ¶ 110.) Dr.

Marande instructed Borrell to contact Richer and

Geisinger personnel to let them know that she was

willing to submit to a drug test and that the issue

needed to be discussed with the Human Resources

Department at Geisinger. (Defs.’ SMF, ¶ 111; Plf.’s

CSF, ¶ 111.) This conversation was not about providing Borrell an opportunity to contest her termination

from the NAP. Instead, it involved Borrell “complain[ing] that it was unfair to ask her to take a drug

test.” (Dr. Marande Dep., 33:3-4.) And, other than

indicating that she should have complied with the

drug test request and that Borrell should take up the

issue regarding her willingness to take the test with

Geisinger Human Resources, Dr. Marande had nothing else to say about that issue. (Id. at 71:19-25.)

Likewise, Borrell’s meeting with Richer and

Lieberman and her conversation with Dr. Marande

on September 24, 2012 also failed to provide her with

an opportunity to be heard. Pursuant to Goss and

Horowitz, a student facing a disciplinary dismissal is

entitled to an opportunity to present his or her side

of the story or to characterize his or her conduct and

80a

put it in the proper context. In this case, Borrell was

not afforded any opportunity to put her conduct in

the proper context. Rather, the day after she refused

to submit to the drug test, she was terminated from

the NAP. In dismissing her without an opportunity

to be heard, Borrell was denied the chance to dispute

Geisinger’s claim that she was required to submit to

a test under the circumstances. Of course, having already refused to take the test, Borrell likely faced

difficulty in convincing Geisinger, Bloomsburg, and

joint Bloomsburg-Geisinger officials that she was not

required under the circumstances to submit to a drug

test. Nevertheless, had Borrell been afforded the opportunity to be heard, she could have presented her

argument that “reasonable suspicion” did not exist to

justify the drug test request. And, had she been afforded this opportunity, Borrell would have had occasion to demonstrate that a disciplinary dismissal

from the NAP was not warranted because she did not

violate a rule or policy of the program. However, because she was not given such an opportunity to be

heard, Borrell was denied the “informal give-andtake” discussed in Goss and Horowitz.12 As such, the

pre-dismissal procedures afforded Borrell did not

provide due process of law.

12 Because Borrell was not provided an “informal give-and-take”

prior to her dismissal from the NAP, I will not address whether

she was entitled to heightened protections beyond those discussed in Goss. See Pugel, 378 F.3d at 664 (“those cases considering the adequacy of notice and hearing procedures in the context of graduate student deprivations have dealt with procedural requirements significantly more extensive than those described in Goss.”); see also Le, 379 F. App’x at 174-75

(procedures afforded to student in connection with his dismissal

from dental school which went beyond those described in Goss

satisfied the requirements of due process).

81a

In addition, Defendants contend that the

Borrell’s due process rights were satisfied in this

case based on procedures afforded and/or available to

her after September 25, 2012. In particular, Dr.

Ficca contends that the following post-termination

events afforded Borrell due process: (1) her conversation with Dr. Marande after learning of her dismissal

from the NAP; (2) Borrell’s email letter to Dr. Ficca

dated September 27, 2012, which requested an appeal of her termination from the NAP; (3) Dr. Ficca’s

discussions with Dr. Marande in which they determined that there was no appeal process for Borrell’s

dismissal; and (4) Dr. Ficca’s October 19, 2012 letter

to Borrell informing her that she could no longer

provide care at Geisinger. (Docs. 119, 12-13; 149, 2022.) Additionally, Defendants also argue that

“Borrell may not advance her procedural due process

claim because she failed to avail herself of process afforded to her by the State’s Administrative [Agency

Law].” (Doc. 117, 25-27 (citing 2 Pa. C.S.A. § 702).)

Citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.

2000), Defendants assert that a due process violation

“is not complete when the deprivation occurs; it is

not complete unless and until the state fails to provide due process.” (Doc. 150, 22-23.) Thus, by not utilizing available state procedures, Defendants argue

that Borrell’s due process claim fails as a matter of

law.

These arguments fail for the same reason. In

particular, they both hinge on the premise that postdeprivation procedures are sufficient to satisfy

Borrell’s procedural due process rights. But, the

availability of post-dismissal procedures is not an

adequate substitute for constitutionally-mandated

pre-deprivation process. See, e.g., Valentine, 2014 WL

3508257, at *7. And, according to the Goss Court, “as

82a

a general rule notice and hearing should precede removal of the student from school.” Goss, 419 U.S. at

582, 95 S. Ct. 729.13 As one district court stated:

“[i]mplicit in [school dismissal cases] is that postdismissal procedure alone is not constitutionally sufficient.” Assenov v. Univ. of Utah, 553 F. Supp. 2d

1319, 1328 (D. Utah 2008); see also Barnes v.

Zaccari, 669 F.3d 1295, 1306 (11th Cir. 2012) (Goss

establishes that student was entitled to notice of

charges and a hearing before his removal). Moreover,

the case cited by Defendants recognizes that the

state’s provision of post-deprivation procedures does

not satisfy the requirements of due process when

pre-deprivation procedures are constitutionally

mandated. See Alvin, 227 F.3d at 120 (“if the Constitution requires pre-termination procedures, the most

thorough and fair post-termination hearing cannot

undo the failure to provide such procedures.” (citing

Stana v. Sch. Dist. of Pittsburgh, 775 F.2d 122, 129

(3d Cir. 1985) (indicating that following Cleveland

Board of Education v. Loudermill, 470 U.S. 532, 105

S. Ct. 1487, 84 L. Ed. 2d 494 (1985), there can be no

requirement to pursue post-deprivation remedies

when pre-deprivation notice or hearing is required

for due process))); see also Stana, 775 F.2d at 130 (“if

the governmental entity could have, but did not, provide predeprivation procedures, a § 1983 action com13 The Goss Court recognized, however, that there are “recur-

ring situations in which prior notice and hearing cannot be insisted upon. Students whose presence poses a continuing danger to persons or property or an ongoing threat of disrupting

the academic process may be immediately removed from school.

In such cases, the necessary notice and rudimentary hearing

should follow as soon as practicable.” Goss, 419 U.S. at 582, 95

S. Ct. 729. It has not been advanced that Borrell’s case posed

such a situation.

83a

plaining of the lack of procedural due process may be

maintained in federal court, notwithstanding the

availability of state judicial routes as well.”). Thus,

because Borrell was entitled to pre-dismissal safeguards, the post-deprivation procedures cited by Defendants did not satisfy Borrell’s due process rights.

d.

Geisinger is subject to liability for

the deprivation of Borrell’s due

process rights.

Next, Geisinger argues that even if Borrell was

deprived of her due process rights, it is nonetheless

entitled to summary judgment because it is not liable

for the constitutional violation at issue. Specifically,

Geisinger contends that Borrell is impermissibly attempting to hold it liable for the acts of its employees

on a respondeat superior theory.

A private company, such as Geisinger, cannot be

held responsible pursuant to § 1983 for the acts of its

employees under a theory of respondeat superior or

vicarious liability. See Natale v. Camden Cnty. Corr.

Facility, 318 F.3d 575, 583 (3d Cir. 2003) (citing

Monell v. New York City Dept. of Soc. Servs., 436

U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611

(1978)). Instead, for Geisinger to be liable under §

1983, Borrell must establish a Geisinger policy or

custom, and that the policy caused the constitutional

violation alleged. See id. at 584 (citing Bd. of Cnty

Comm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct.

1382, 137 L. Ed. 2d 626 (1997)). A policy is made

“when a decision maker possess[ing] final authority

to establish municipal policy with respect to the action issues a final proclamation, policy or edict.”

Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)

(quoting Pembaur v. City of Cincinnati, 475 U.S. 469,

481, 106 S. Ct. 1292, 89 L. Ed .2d 452 (1986) (plurali-

84a

ty opinion)). A municipality is liable for the torts of

its employees in one of three ways:

First, the municipality will be liable if its

employee acted pursuant to a formal government policy or a standard operating procedure long accepted within the government

entity; second, liability will attach when the

individual has policy making authority rendering his or her behavior an act of official

government policy; third, the municipality

will be liable if an official with authority has

ratified the unconstitutional actions of a subordinate, rendering such behavior official for

liability purposes.

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005)

(internal citations omitted).

In this case, Borrell does not argue that the Drug

and Alcohol Policy is itself unconstitutional. Rather,

Borrell argues that Geisinger is subject to liability

under § 1983 for the deprivation of her due process

rights because: (1) Richer is Geisinger’s highest policymaking official for terminating students from the

NAP; and (2) Richer’s decision to terminate her from

the NAP without due process of law was ratified by

Geisinger. (Doc. 87, 22.) Conversely, Geisinger argues that it is not liable under § 1983 because Richer

is not a policymaker, Richer dismissed Borrell from

the NAP pursuant to a policy that he did not create,

and Borrell applies the incorrect standard for ratification. (Doc. 117, 27-29.)

The Supreme Court in Pembaur v. City of Cincinnati noted that “it is plain that municipal liability

may be imposed for a single decision by municipal

policymakers under appropriate circumstances.”

85a

Pembaur, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L.

Ed. 2d 452 (1986). Thus, “[i]f the decision to adopt [a]

particular course of action is properly made by the

government’s authorized decisionmakers, it surely

represents an act of official government ‘policy’ as

that term is commonly understood.” Id. at 481, 106

S. Ct. 1292. And, “where action is directed by those

who establish government policy, the municipality is

equally responsible whether that action is to be taken only once or to be taken repeatedly.” Id. But, the

Pembaur plurality emphasized that “[t]he fact that a

particular official- even a policymaking official- has

discretion in the exercise of a particular function

does not, without more, give rise to municipal liability based on an exercise of that discretion. The official must also be responsible for establishing final

government policy respecting such activity before the

municipality can be held liable.” Id. at 481-83, 106 S.

Ct. 1292 (plurality opinion) (internal citation omitted). By way of illustration, the plurality explained:

Thus, for example, the County Sheriff may

have discretion to hire and fire employees

without also being the county official responsible for establishing county employment policy. If this were the case, the Sheriff’s decisions respecting employment would not give

rise to municipal liability, although similar

decisions with respect to law enforcement

practices, over which the Sheriff is the official policymaker, would give rise to municipal liability. Instead, if county employment

policy was set by the Board of County Commissioners, only that body’s decisions would

provide a basis for county liability. This

would be true even if the Board left the Sheriff discretion to hire and fire employees and

86a

the Sheriff exercised that discretion in an

unconstitutional manner; the decision to act

unlawfully would not be a decision of the

Board. However, if the Board delegated its

power to establish final employment policy to

the Sheriff, the Sheriff’s decisions would represent county policy and could give rise to

municipal liability.

Id. at 483 n.12, 106 S. Ct. 1292 (plurality opinion).

Two years after the Court issued its decision in

Pembaur, the Supreme Court decided City of St.

Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99

L. Ed. 2d 107 (1988) (plurality opinion). A plurality

in Praprotnik, citing Pembaur, emphasized that

“[w]hen an official’s discretionary decisions are constrained by policies not of that official’s making,

those policies, rather than the subordinates departures from them, are the act of the municipality.” Id.

at 127, 108 S. Ct. 915 (emphasis in original); see also

Andrews v. City of Phila., 895 F.2d 1469, 1481 (3d

Cir. 1990) (same).

Geisinger argues that this reasoning is applicable here, and that this case fits within the hypothetical example discussed by the Pembaur plurality.

Specifically, Geisinger contends that it is undisputed

that its Drug and Alcohol Policy is set by its Human

Resources Department and that Richer did not set

the Policy, nor does he have control over its contents.

(Defs.’ SMF, ¶ 62; Plfs. CSF, ¶ 62.) Rather, Geisinger

Human Resources has “authority and responsibility”

over the Drug and Alcohol Policy. (Hallick Decl., ¶

16.) And, even though the record indicates that Richer “is the highest decision maker about termination

of students from the program,” (Lieberman Dep.,

78:15-18), Richer was “bound by Geisinger’s drug pol-

87a

icy, which [he] did not create.” (Doc. 131, 21.)

Geisinger thus reasons that Richer’s “decision to follow the Policy is not a basis for liability.” (Doc. 150,

28.)

The fact that Richer did not set the Drug and Alcohol Policy does not end the inquiry, however, because “[a]n employee who lacks policymaking authority can still bind the municipality if a municipal policymaker delegated power to the employee or ratified

his decision.” Kelly v. Borough of Carlisle, 622 F.3d

248, 264 (3d Cir. 2010) (citing La Verdure v. Cnty. of

Montgomery, 324 F.3d 123, 125 (3d Cir. 2003)). For

example, in Pembaur, the plurality noted that if the

policymaker delegates “power to establish final employment policy” to an official, then that official’s decisions would represent policy and “could give rise to

municipal liability.” Pembaur, 475 U.S. at 483 n.12,

106 S. Ct. 1292 (plurality opinion). However,

“‘[s]imply going along with discretionary decisions

made by one’s subordinates . . . is not a delegation to

them of the authority to make policy.’” Kelly, 622

F.3d at 264 (quoting Praprotnik, 485 U.S. at 130, 108

S. Ct. 915 (plurality opinion)). With respect to ratification, the Praprotnik plurality emphasized that:

[w]hen a subordinate’s decision is subject to

review by the municipality’s authorized policymakers, they have retained the authority

to measure the official’s conduct for conformance with their policies. If the authorized policymakers approve a subordinate’s decision

and the basis for it, their ratification would

be chargeable to the municipality because

their decision is final.

88a

Praprotnik, 485 U.S. at 127, 108 S. Ct. 915 (emphasis in original); see also Kelly, 622 F.3d at 264; Andrews, 895 F.2d at 1481.

The evidence of record demonstrates that Richer’s decision to terminate Borrell from the NAP

without due process of law was ratified by

Geisinger’s policymakers. According to Hallick,

Geisinger’s Human Resources Department “has authority and responsibility over the Drug & Alcohol

Policy.” (Hallick Decl., ¶ 16.) Hallick further indicated that she was responsible for ensuring that “any

matters of significance in the NAP are handled consistently” with Geisinger’s policies. (Id. at ¶ 7.)

Hallick and others working in the NAP “are to rely

upon and seek guidance from GMC’s Human Resources Director when issues of significance arise so

that the proper process is followed and GMC’s policies, procedures and practices are applied consistently.” (Id. at ¶ 12.) With respect to Borrell’s termination from the NAP, Hallick worked with Richer to

ensure that Geisinger’s “policies, practices, and procedures were followed, Human Resources was consulted (which has authority and responsibility over

the Drug & Alcohol Policy), and this GMC issue was

addressed consistent with system-wide application of

the Drug & Alcohol Policy.” (Id. at ¶ 16.) In fact,

Hallick testified: “[i]n applying GMC’s Drug & Alcohol Policy to Ms. Borrell, Richer was in consultation

with and obtained approval from me as well as guidance from GMC’s Human Resource Director, acting

on GMC’s behalf.” (Id. at ¶ 23.)

As such, based on the evidence submitted by

Geisinger, the Human Resources Department, the

body with authority over the Drug and Alcohol Policy, consulted with Richer to ensure that the decision

89a

to terminate Borrell from the NAP conformed to

Geisinger’s policies. See Pembaur, 475 U.S. at 483

n.12 (plurality opinion) (“if county employment policy

was set by the Board of County Commissioners, only

that body’s decisions would provide a basis for county

liability.”). The purpose of consulting with Human

Resources was to ensure consistent system-wide application of the policy, and Richer obtained guidance

in applying the Drug and Alcohol Policy to Borrell

from Geisinger’s Human Resources Director. (Hallick

Decl., ¶¶ 16, 23.) In addition, Richer’s direct and only

supervisor above him at Geisinger was Hallick,

(Richer Dep., 37:10-21), and Richer obtained her “approval” in applying the Drug and Alcohol Policy to

Borrell. (Hallick Decl., ¶ 23.) Thus, as Richer’s application of the Drug and Alcohol Policy occurred with

the guidance and consultation of the Human Resources Department, in addition to the approval of

his supervisor, Lieberman and Hallick measured his

“conduct for conformance” with Geisinger’s policy.

Kelly, 622 F.3d at 264. And, because Richer’s decision to dismiss Borrell from the NAP without due

process of law was reviewed and approved by the

Human Resources Department and Hallick, and the

basis of her dismissal from the NAP- refusal to submit to a drug test as required by the policy- was also

approved, Geisinger is liable under § 1983 pursuant

to the reasoning in Praprotnik and Andrews. See

Praprotnik, 485 U.S. at 127, 108 S. Ct. 915 (plurality

opinion); Andrews, 895 F.2d at 1481 (“If the authorized policymakers approve a subordinate’s decision

and the basis for it, their ratification would be

chargeable to the municipality because their decision

is final.”).

Accordingly, in this case, Geisinger’s liability under § 1983 is not based on a finding that the policy in

90a

question is itself unconstitutional, as there has been

no suggestion here that the policy explicitly violates

a constitutional right when enforced. Nor is

Geisinger subject to liability solely because Richer, a

joint Bloomsburg-Geisinger employee, applied the

policy in an unconstitutional manner in dismissing

Borrell from the NAP without due process of law. If

that were the case, liability would be impermissibly

premised on a theory of respondeat superior. Rather,

as explained, Geisinger is liable here because its authorized policymakers with authority and responsibility over the policy ratified the decision to dismiss

Borrell from the NAP without the procedural safeguards required by the Due Process Clause.

Geisinger’s written summary judgment submissions further reflect that it ratified Richer’s decision

to terminate Borrell without due process of law.

Among other statements made by Geisinger in its

submissions, it asserts that: (1) Geisinger “retained

authority through Hallick to measure Richer’s conduct for conformance with Geisinger’s policies,” (Doc.

150, 28 (internal quotation and alteration omitted));

(2) “Richer’s application of this policy was then subject to review by both Susan Hallick and Brion

Lieberman,” (Doc. 117, 29); (3) Richer needed “to confer and consult” with Hallick and Lieberman regarding Borrell’s termination, (Id. at 12); (4) “Richer’s decisions required conferral with GMC’s Vice President

of Human Resources Brion Lieberman14 and Chief

Nursing Officer Susan Hallick,” (Doc. 131, 21); and

(5) “she [Hallick], along with Brion Lieberman, reviewed Richer’s decision and approved it.” (Id. at 121

Lieberman testified that his position was as Human Resources Director. (Lieberman Dep., 5:8.)

14

91a

(emphasis added).) These statements are all in accord with the standard for ratification discussed in

Praprotnik and Andrews.

e.

Richer is not entitled to a “good

faith” defense.

Richer also contends that even if a constitutional

violation occurred in this case, he is nonetheless entitled to summary judgment pursuant to a “good

faith defense.”15 The United States District Court for

the Eastern District of Pennsylvania has explained

that:

[t]he foundation for the good faith defense

lies in Lugar where the Court expressed concern for private individuals who innocently

make use of seemingly valid state laws that

are subsequently held to be unconstitutional.

The Court observed that such concerns would

best be alleviated by creating a good faith defense, but it declined to rule definitely on the

availability of such a defense.

Egervary v. Rooney, No. 96-3039, 2000 WL 1160720,

at *6 (E.D. Pa. Aug. 15, 2000) (O’Neill, J.) (internal

alterations omitted) (quoting Lugar v. Edmondson

Oil, Inc., 457 U.S. 922, 942 n.23, 102 S. Ct. 2744, 73

L. Ed. 2d 482 (1982)). Following Luger, in Jordan v.

Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,

1275-78 (3d Cir. 1994), the Third Circuit held that

private individuals invoking state attachment laws,

which are thereafter found to be unconstitutional,

can raise an affirmative defense of good faith. In that

15 Richer did not seek summary judgment on the basis of quali-

fied immunity, nor did he oppose Borrell’s motion on qualified

immunity grounds.

92a

regard, the Jordan court ruled that “private defendants should not be held liable under § 1983 absent a

showing of malice and evidence that they either

knew or should have known of the statute’s constitutional infirmity,” and malice, in this context, meant a

“creditor’s subjective appreciation that its act deprives the debtor of his constitutional right to due

process.” Id. at 1276 (citation and quotation omitted).

Since the Third Circuit decided Jordan, courts

have expressed doubt as to its applicability outside

the context of state attachment laws. See, e.g., Pearson v. City of Phila., No. 97-1298, 1998 WL 721076,

at *2 (E.D. Pa. Oct. 15, 1998) (“To import into Eighth

Amendment jurisdprudence a defense predicated on

the elements of a common law claim for a wrongful

seizure of property and the reasonableness of reliance on a facially valid statute is a leap. The good

faith defense discussed in Jordan has yet to be afforded to other than private individuals who in concert with state officials invoke state law in pursuit of

a private objective.”). And, a number of district

courts in this Circuit have concluded that, assuming

a good faith defense is available, summary judgment

on that defense is not appropriate because it involves

inquiry into an individual defendant’s state of mind.

See, e.g., Morgan-Mapp v. George W. Hill Corr. Facility, No. 07-2949, 2008 WL 4211699, at *15 (E.D. Pa.

Sept. 12, 2008) (“Without deciding whether a ‘good

faith’ defense is available in this context, it is clear

that ‘good faith’ requires a subjective inquiry into the

Individual Prison Defendants’ state of mind, making

summary judgment on that defense inappropriate.”);

Wolfe v. Horn, 130 F. Supp. 2d 648, 659 (E.D. Pa.

2001) (“assuming the ‘good-faith’ defense applies in

this context, the defendants’ subjective state of mind

cannot be evaluated without weighing the evidence

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and determining credibility.”); Egervary, 2000 WL

1160720, at *6 (denying summary judgment on the

good faith defense but allowing defendants to assert

the defense at trial); but see Doby v. DeCrescenzo, No.

94-3991, 1996 WL 510095, at *21 (E.D. Pa. Sept. 9,

1996) (granting defendants’ motion for summary

judgment on § 1983 claims against private individual

defendant based on good faith defense).

Assuming that the good faith defense articulated

by the Third Circuit in Jordan applies to claims such

as those brought in this action, that defense is not

applicable in this case. As explained in Jordan, “good

faith is a defense available to private persons who

act under color of law.” Jordan, 20 F.3d at 1276. Because Richer was jointly employed by both Geisinger

and Bloomsburg, and in the absence of authority that

an individual jointly employed by the state and a

private entity can avail himself or herself of the good

faith defense discussed in Jordan, that defense is not

available in this case. Rather, Richer’s defense on

immunity grounds would be governed by the standard for qualified immunity. Cf. Filarsky v. Delia, - - U.S. - - -, 132 S. Ct. 1657, 1660-61, 1665, 182 L. Ed.

2d 662 (2012) (attorney retained to assist in conducting official investigation of wrongdoing was entitled

to qualified immunity even though he worked for

“the government on something other than a permanent or full-time basis” because “immunity under §

1983 should not vary depending on whether an individual working for the government does so as a fulltime employee, or on some other basis.”). However,

since Richer did not raise qualified immunity in his

summary judgment submissions, I will refrain from

addressing whether Richer is entitled to qualified

immunity in this case.

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f.

Dr. Ficca is not entitled to qualified

immunity.

Dr. Ficca contends that even if her conduct deprived Borrell of her constitutional rights, she should

be afforded qualified immunity. Qualified immunity

applies to procedural due process claims. See, e.g.,

Schmidt v. Creedon, 639 F.3d 587, 598-99 (3d Cir.

2011).

“The doctrine of qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a

reasonable person would have known.’” Pearson v.

Callahan, 555 U.S. 223, 129 S. Ct. 808, 815, 172 L.

Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457

U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396

(1982)). “A defendant has the burden to establish

that he is entitled to qualified immunity.” Kopec v.

Tate, 361 F.3d 772, 776 (3d Cir. 2004). The Supreme

Court has established a two-part analysis that governs whether an official is entitled to qualified immunity. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.

2151, 150 L. Ed. 2d 272 (2001). “Thus, we ask: (1)

whether the facts alleged by the plaintiff show the

violation of a constitutional right; and (2) whether

the right at issue was clearly established at the time

of the alleged misconduct.” Kelly v. Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010). Courts may

address the two Saucier prongs in any order, at their

discretion. Pearson, 555 U.S. at 236, 129 S. Ct. 808.

The first prong of Saucier is satisfied because

Borrell has demonstrated that Dr. Ficca deprived of

her of a property interest in the continuation of her

course of study without due process of law. Accordingly, only Saucier’s second prong is at issue.

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Under the second prong, a legal right is clearly

established if “its contours [are] sufficiently clear

that a reasonable official would understand that

what he is doing violates that right.” Anderson v.

Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.

Ed. 2d 523 (1987); Doe v. Delie, 257 F.3d 309, 318 (3d

Cir. 2001) (“The issue is whether, given the established law and the information available to Defendants, reasonable prison officials in Defendants’ positions could have believed that their conduct was lawful.”). The inquiry under the clearly established

prong “focuses on the official’s actual situation, [and]

the analysis ‘must be undertaken in light of the specific context of the case, not as a general proposition

. . . .’” Montanez v. Thompson, 603 F.3d 243, 251 (3d

Cir. 2010) (quoting Saucier, 533 U.S. at 201, 121 S.

Ct. 2151).

A constitutional or statutory duty, however, “is

not clearly established simply because of the existence of a broad imperative like the one against ‘unreasonable . . . seizures,’” Schneyder v. Smith, 653

F.3d 313, 329 (3d Cir. 2011), or the deprivation of

life, liberty, or property without due process of law.

See also Wilson v. Layne, 526 U.S. 603, 615, 119 S.

Ct. 1692, 143 L. Ed. 2d 818 (1999) (“It could plausibly be asserted that any violation of the Fourth

Amendment is ‘clearly established,’ since it is clearly

established that the protections of the Fourth

Amendment apply to the actions of police. . . . [T]he

right allegedly violated must be defined at the appropriate level of specificity before a court can determine if it was clearly established. In this case, the

appropriate question is the objective inquiry whether

a reasonable officer could have believed that bringing

members of the media into a home during the execution of an arrest warrant was lawful, in light of clear-

96a

ly established law and the information the officers

possessed.”). “‘If the test of clearly established law

were to be applied at this level of generality, it would

bear no relationship to the ‘objective legal reasonableness’ that is the touchstone of Harlow.’”

Schneyder, 653 F.3d at 329 (quoting Anderson, 483

U.S. at 639, 107 S. Ct. 3034). “Thus, the usual rule is

that ‘the right the official is alleged to have violated

must have been clearly established in a more particularized, and hence, more relevant, sense . . . .’” Id.

(quoting Anderson, 483 U.S. at 640, 107 S. Ct. 3034).

As such, “the court must define the right allegedly

violated at the appropriate level of specificity.” Sharp

v. Johnson, 669 F.3d 144, 159 (3d Cir. 2012).

Nevertheless, while the Supreme Court “appears

to require a relatively high degree of specificity before a rule can be called ‘clearly established,’ the

Court was at pains to emphasize that ‘[t]his is not to

say that an official action is protected by qualified

immunity unless the very action in question has previously been held unlawful, but it is to say that in

the light of pre-existing law the unlawfulness must

be apparent.” Schneyder, 653 F.3d at 329 (quoting

Anderson, 483 U.S. at 640, 107 S. Ct. 3034 (citations

omitted)). Rephrased, “there does not have to be precise factual correspondence between the case at issue

and a previous case in order for a right to be clearly

established . . . .” Kopec v. Tate, 361 F.3d 772, 778

(3d Cir. 2004) (quotations omitted). Accordingly, “officials can still be on notice that their conduct violates established law even in novel factual circumstances, as long as the law gave the defendant [official] fair warning that his conduct was unconstitutional.” Kelly v. Borough of Carlisle, 622 F.3d 248,

259-60 (3d Cir. 2010) (citations and quotation omitted). In determining whether a right was clearly es-

97a

tablished, the Third Circuit has emphasized that the

applicable law must be reviewed “with particular attention to the dates the leading opinions were announced.” Assaf v. Fields, 178 F.3d 170, 174 (3d Cir.

1999).

In this case, it was clearly established well before

September 25, 2012 that, under Pennsylvania law, a

graduate student has a property interest in the continuation of his or her course of study. See, e.g., Coulter, 2010 WL 1816632, at *2; Manning, 2004 WL

3019230, at *8; Stoller, 562 F. Supp. at 412; Ross,

445 F. Supp. at 153. Furthermore, it was clearly established by 2012 that a graduate student’s dismissal, be it disciplinary or academic, must be accompanied by procedural safeguards. See Horowitz, 435

U.S. 78, 98 S. Ct. 948. And, with regard to disciplinary dismissals, it was established long before September 25, 2012 that, at a minimum, a student was

entitled to “‘be given oral or written notice of the

charges against him and, if he denies them, an explanation of the evidence the authorities have and an

opportunity to present his side of the story.’” Id. at

85, 98 S. Ct. 948 (quoting Goss, 419 U.S. 565, 95 S.

Ct. 729).

Nevertheless, Dr. Ficca contends that a reasonable official in her position would not have known

that her actions were in violation of Borrell’s due

process rights. (Doc. 119, 2123.) According to Dr.

Ficca, “[t]he decision to dismiss plaintiff from the

NAP resulted from a compilation of issues regarding

her termination from GMC, who provided the required clinical portion of the NAP.” (Id. at 22.) As a

result, since Borrell could not complete the clinical

portion of the program, she was dismissed from the

NAP. (Id. at 23.) Dr. Ficca thus concludes that be-

98a

cause the constitutional violation that occurred “resulted from a combination of issues from two separate entities,” reasonable officials would not have

recognized that they were violating Borrell’s constitutional rights. (Id.)

Dr. Ficca is not entitled to qualified immunity.

Geisinger and Bloomsburg’s collaboration in the NAP

does not prevent a finding that Dr. Ficca had fair

warning that her conduct was unconstitutional. In

particular, a reasonable official in Dr. Ficca’s position, i.

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