United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON UNIVERSITY'S FED. R.
CIV. P. 12(B)(1) MOTION TO DISMISS (DKT. NO. 31)
L. CABELL, U.S.M.J.
Kamayou was a graduate student at the University of
Massachusetts at Lowell (“the University”) until
the University expelled him after learning he'd been
charged with domestic violence related offenses. Kamayou has
brought suit against the University, its police department,
and various University police officers for violating his
constitutional rights, for tortious conduct, and for breach
of contract. The defendants argue that they are immune from
suit and move pursuant to Fed.R.Civ.P. 12(b)(1) to dismiss
the complaint for lack of subject matter jurisdiction. (Dkt.
No. 31). Kamayou opposes the motion and the matter has been
fully briefed. (Dkt. No. 37). After careful consideration of
the parties' submissions, the court recommends that the
motion be granted in part and denied in part.
RELEVANT FACTUAL BACKGROUND
facts are taken from the complaint and assumed to be true for
purposes of the motion to dismiss.
fall of 2011, Kamayou enrolled as a graduate student at the
University with the hopes of obtaining a Master of Science
degree in applied mathematics. (Compl. ¶ 39). Kamayou
was an exceptional student and maintained a perfect grade
point average. (Id. at ¶ 43). In January 2013,
however, things took a turn for the worse.
January 10, 2013, Kamayou's former girlfriend, also a
University student, falsely accused Kamayou of kidnapping her
following a dispute with Kamayou's then current
girlfriend, and Kamayou was subsequently charged with
attempted kidnapping in the Clinton District Court.
(Id. at ¶¶ 48, 55). Kamayou's former
girlfriend also notified the University of the pending
criminal charges and insisted that Kamayou be expelled and
barred from the campus. (Id. at ¶ 49).
thereafter, the University suspended Kamayou and issued a
no-trespass order barring him from the campus. (Id.
at ¶¶ 50, 53). Kamayou did not receive prior notice
of the University's adverse action against him and also
was not offered an opportunity to be heard. (Id. at
his suspension, the University ordered Kamayou to meet with
its Coordinator of Student Conduct, defendant Bohdan Zaryckyj
(“Zaryckyj”). (Id. at ¶ 56).
Kamayou was instructed to first meet with Detective Mark
Schaaf (“Schaaf”) and Sergeant Scott
Childs (“Childs”), both members of
the University's Police Department, who would then escort
Kamayou to meet with Zaryckyj. (Id. at ¶ 57).
arrival, Kamayou was escorted to Zaryckyj's office, where
he was “placed in custody” while Officers Schaaf
and Childs stood guard outside. (Id. at ¶ 60).
Zaryckyj then proceeded to “interrogate” Kamayou
about the criminal matter before the Clinton District Court,
and demanded that Kamayou provide “a written
statement” about the events surrounding the charge.
(Id. at ¶¶ 61, 63). Zaryckyj then left the
room, leaving Kamayou alone to write his statement.
(Id. at ¶ 63). In a moment of panic, Kamayou
called his sister, who reminded him of his attorney's
instruction not to speak to anyone about the Clinton District
Court matter without the attorney being present.
(Id. at ¶ 65).
then attempted to leave the room, taking with him
Zaryckyj's notes of the interrogation. (Id. at
¶ 69). Zaryckyj instructed Officers Schaaf and Childs to
physically restrain Kamayou and to forcibly take the notes
from him. (Id. at ¶ 70). The Officers then
“pounced” on Kamayou and “exerted a savage
beating” on him. (Id. at ¶ 71).
result of this encounter, Kamayou was further charged with
malicious or wanton damage to property, larceny, and
resisting arrest. (Id. at ¶ 73). The Lowell
District Court subsequently dismissed the malicious/wanton
damage and larceny charges. (Id. at ¶ 76).
Kamayou was acquitted of the resisting arrest charge
following a jury trial. (Id. at ¶ 78).
while these criminal charges were still pending, Zaryckyj
initiated a Campus Conduct Board Hearing against Kamayou, who
once again was not given notice of the proceedings or an
opportunity to be heard. (Id. at ¶¶
80-83). The Board decided to expel Kamayou from the
University. (Id. at ¶ 84).
October 23, 2017, the defendants moved to dismiss the
complaint pursuant to Fed.R.Civ.P. 12(b)(1) for lack of
subject matter jurisdiction. (Dkt. No. 31). They also moved
on the same day for summary judgment. (Dkt. No. 33). The
plaintiff filed an opposition to the motion to dismiss on
November 11, 2017, and ...