United States District Court, D. Massachusetts
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION
FOR SUMMARY JUDGMENT (DKT. NO. 33)
L. CABELL, U.S.M.J.
University of Massachusetts Lowell (“the
University”) expelled Fabrice Kamayou after conducting
an investigation into allegations he had committed serious
domestic violence related conduct. Kamayou brought suit and
the complaint at present asserts civil rights and tort claims
against three individuals, including the University
administrator who led the investigation and two University
police officers. The defendants move for summary judgment;
the plaintiff opposes the motion. (Dkt. Nos. 33, 38). For the
reasons discussed below, the court recommends that the motion
be granted with respect to the administrator, and granted in
part and denied in part with respect to the police officers.
RELEVANT FACTUAL BACKGROUND
Kamayou was at all relevant times a graduate student at the
University. Defendant Bohdan Zaryckyj was the
University's Coordinator of Student Conduct. Defendants
Scott Childs and Mark Schaaf were Sergeants with the
University Police Department.
The Incident and Kamayou's Suspension
January 14, 2013, a female University student reported to
University police that Kamayou had recently punched her in
the chest, pinned her down, forcibly placed her in the trunk
of his car, and drove away while she was still in the trunk.
(University Defendants' Statement of Material Facts In
Support of Their Motion for Summary Judgment
(“Defendants' SUF”), at ¶ 1;
Plaintiff's Response to Defendants' Statement of
Material Facts In Support of Their Motion for Summary
Judgment (“Plaintiff's Responses”), at
¶¶ 1, 3). As the University was learning of the
allegations, Kamayou was separately charged in state court
with one count of kidnapping, two counts of domestic assault
and battery, one count of threatening to commit a crime, and
one count of intimidation of a witness. (Defendants' SUF,
at ¶ 53; Plaintiff's Responses, at ¶ 53).
University Police Chief learned of the charges and sent an
email to various University employees alerting them of the
incident and Kamayou's arrest. (Defendants' SUF, at
¶ 4; Plaintiff's Reponses, at ¶ 4). Zaryckyj
was asked to investigate the matter further as the
University's Coordinator of Student Conduct.
(Plaintiff's Concise Statement of Material Facts of
Record (“Plaintiff's SUF”), at ¶ 26.
following morning, January 15, 2013, the University's
Vice Provost for Graduate Education informed Kamayou by
letter that he was being placed on interim suspension pending
an investigation. (Defendants' SUF, at ¶ 5;
Plaintiff's Responses, at ¶ 5). That same day,
University police and Fitchburg police officers personally
hand delivered a copy of the Vice Provost's letter to
Kamayou at his residence, along with a criminal trespass
notice barring him from going onto campus. (Defendants'
SUF, at ¶¶ 5-6; Plaintiff's Responses, at
¶¶ 5-6). Kamayou opened and read both notices in
the presence of officers and indicated that he fully
understood their contents. (Defendants' SUF, at ¶ 6;
Plaintiff's Responses, at ¶ 6).
Kamayou's Meeting with Zaryckyj
University had not spoken to the victim or Kamayou about the
incident prior to placing him on interim suspension.
(Plaintiff's SUF, at ¶¶ 31-32, 38). On January
25, 2013, Kamayou met with Zaryckyj to give his version of
events, and to possibly provide a written statement.
(Defendants' SUF, at ¶¶ 9-10; Plaintiff's
Responses, at ¶¶ 9-10). Due to Kamayou's
status, Zaryckyj instructed him to wait in the
University's parking lot when he arrived; University
police, and in particular Sergeants Childs and Schaaf, would
then escort Kamayou to Zaryckyj's office for the meeting,
and then escort him back to his vehicle when the meeting was
over. (Defendants' SUF, at ¶ 12; Plaintiff's
Responses, at ¶ 12; Plaintiff's SUF, at ¶ 48).
The parties agree that the meeting took place but disagree as
to what happened during it.
to the defendants, Kamayou admitted that he had
“grabbed [the female University student] with both
hands” and “put her in the trunk of the car and
shut the trunk.” (Defendants' SUF, at ¶ 13).
Zaryckyj then left Kamayou alone in his office so that
Kamayou could prepare a written statement. (Defendants'
SUF, at ¶ 14). When Zaryckyj returned, Kamayou was
talking on the phone but then quickly hung up. Kamayou
suddenly “grabbed” the handwritten notes that
Zaryckyj had been taking during the meeting and attempted to
leave Zaryckyj's office. (Defendants' SUF, at ¶
alerted Sergeants Childs and Schaaf, who were standing guard
outside of the office, that Kamayou had taken his notes.
(Defendants' SUF, at ¶ 16). Sergeant Childs asked
Kamayou to return the notes but Kamayou refused and instead
“stuff[ed] them in his mouth as if to eat them.”
(Defendants' SUF, at ¶¶ 16-17). Sergeants
Childs and Schaaf then brought Kamayou to the ground in an
effort to retrieve the notes. (Defendants' SUF, at ¶
18). They ordered Kamayou to place his hands behind his back
so he could be handcuffed but Kamayou became increasingly
violent and resisted. (Defendants' SUF, at ¶¶
19-21). At some point during the struggle, Kamayou spit the
notes out of his mouth. (Defendants' Exhibit A-20,
University of Massachusetts Lowell Police Department Report
prepared by Detective Mark Schaaf). Kamayou was eventually
handcuffed, brought to his feet and seated in a nearby chair.
(Id.). He attempted to stand back up but was ordered
to remain seated. When he refused, the officers restrained
him to the chair. (Id.). In due course, Kamayou was
escorted to the Lowell Police Department for booking.
characterizes things differently. He contends that he was
escorted to Zaryckyj's office “for his
detention” and “interrogat[ion]” on the
domestic violence related allegations. (Plaintiff's SUF,
at ¶ 48). No one advised him of the reason for his
detention or advised him of his rights, and no one gave him
an opportunity to confer with his counsel prior to providing
a statement. (Id.). Kamayou told Zaryckyj that his
attorney had advised him not to speak to anyone outside of
the attorney's presence but Zaryckyj told him that it
“was in his best interest to do so.”
(Plaintiff's SUF, at ¶ 49). Zaryckyj proceeded to
interrogate Kamayou for a half hour and then demanded that he
provide a written statement. Zaryckyj also told him that
providing a statement was the only option Kamayou had if he
wished to receive his degree. (Plaintiff's SUF, at ¶
51; Plaintiff's Responses, at ¶ 14).
pertains to the meeting notes, Kamayou insists that the notes
were written by both Kamayou and Zaryckyj rather than just
Zaryckyj alone. (Id.; Plaintiff's Responses, at
¶ 15). Kamayou states that when he was left alone to
draft his statement, he became overwhelmed and decided to
leave. (Plaintiff's SUF, at ¶ 53). He contends that
he put the notes in his backpack and made his way to the
door, but Zaryckyj refused to end the meeting and blocked the
exit. (Id.; Plaintiff's SUF, at ¶ 54).
Zaryckyj then alerted Sergeants Schaaf and Childs that
Kamayou had taken his notes and Kamayou in turn stuffed the
notes in his mouth. (Defendants' Exhibit A, Kamayou Dep.
to Kamayou, Zaryckyj instructed Sergeants Schaaf and Childs
to physically restrain Kamayou and to take the notes from
him. (Plaintiff's SUF, at ¶ 55). The officers
accordingly “pounced” on Kamayou, took him to the
ground, and forcibly recovered the notes from his mouth.
(Plaintiff's SUF, at ¶ 57; Plaintiff's
Responses, at ¶ 16; Defendants' Exhibit A, Kamayou
Dep. 215: 16-22). Kamayou does not recall what happened after
he was taken to the ground. (Defendants' Exhibit A,
Kamayou Dep. 216: 3-17). He contends that if he did engage in
any conduct that appeared to look like resistance, he was not
resisting and was only trying to reposition his body because
he was having difficulty breathing. (Defendants' Exhibit
A, Kamayou Dep. 216: 18-22).
was subsequently arrested and charged in state court with one
count of vandalizing property (Zaryckyj's notes), one
count of larceny for the theft of Zaryckyj's notes, and
one count of resisting arrest. (Plaintiff's SUF, at ¶
Code of Conduct Disciplinary Process
January 28, 2013, Kamayou received an official notice from
the University informing him of “Code of Conduct”
charges lodged against him as a result of his conduct during
the meeting with Zaryckyj. (Defendants' SUF, at ¶
27; Plaintiff's Responses, at ¶ 27). On February 12,
2013, Kamayou met with Zaryckyj to respond to the Code of
Conduct charges. Kamayou among other things signed a formal
denial of the charges against him, executed a release form
granting the University permission to speak with his
attorney, and made a formal request for a Conduct Board
hearing, which was set for February 22, 2013.
(Defendants' SUF, at ¶¶ 28-31; Plaintiff's
Responses, at ¶¶ 28-31).
advance of the hearing, Zaryckyj informed Kamayou that he had
the right to be represented by an attorney and that he should
immediately notify Zaryckyj if he believed any of the listed
Conduct Board members scheduled to hear the matter presented
a conflict of interest. (Defendants' SUF, at ¶ 32;
Plaintiff's Responses, at ¶ 32). Zaryckyj also sent
Kamayou a script and outline of the hearing. (Defendants'
SUF, at ¶ 34; Plaintiff's Responses, at ¶ 34).
February 22, 2013, the hearing proceeded as scheduled. On
February 25, 2013, Zaryckyj informed Kamayou by e-mail that
the Conduct Board had determined that Kamayou had violated
the Code of Conduct as charged and was accordingly to be
expelled from the University. (Defendants' SUF, at ¶
41; Plaintiff's Responses, at ¶ 41). Zaryckyj
informed Kamayou of his right to appeal and provided him with
a link to the Code outlining the appellate procedure.
(Defendants' SUF, at ¶ 42; Plaintiff's
Responses, at ¶ 42). Kamayou was also informed that the
deadline to appeal the Board's decision was March 4,
this email, Kamayou emailed Zaryckyj about two weeks later,
on March 7, 2013, asking for an update on the Board's
decision. (Defendants' SUF, at ¶ 43; Plaintiff's
Responses, at ¶ 43). Zaryckyj responded that he had sent
the Board's letter by email and by certified U.S. mail on
February 25, 2013, per Kamayou's request, and that
Kamayou no longer had the right to appeal because the
deadline had passed. (Defendants' SUF, at ¶¶
44-48; Plaintiff's Responses, at ¶¶ 44-48).
prior litigation, the complaint asserts four claims against
Zaryckyj and Sergeants Schaaf and Childs. Count I alleges
that the defendants deprived Kamayou of his First, Fourth,
Sixth, Eighth and Fourteenth Amendment rights, in violation
of 42 U.S.C. § 1983. Count III asserts a state common
law claim for malicious prosecution and abuse of process.
Count IV asserts a claim for state common law claim for false
arrest and imprisonment. Finally, Count V asserts a state
common law claim for assault and battery.
the court is presented with a motion for summary judgment, it
shall grant the motion “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to a judgment as a matter of law.”
Fed.R.Civ.P. 56(a). The moving party bears the initial burden
of “assert[ing] the absence of a genuine issue of
material fact and then support[ing] that assertion by
affidavits, admissions, or other materials of evidentiary
quality.” Mulvihill v. Top-Flite Golf Co., 335
F.3d 15, 19 (1st Cir. 2003). Once the moving party meets that
burden, in order to avoid summary judgment, the opposing
party must “show that a factual dispute does exist, but
summary judgment cannot be ...