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Kamayou v. University of Massachusetts Lowell

United States District Court, D. Massachusetts

September 7, 2018



          DONALD L. CABELL, U.S.M.J.


         The 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.


         A. The Parties

         Fabrice 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.

         B. The Incident and Kamayou's Suspension

          On 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).

         The 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.

         On the 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).

         C. Kamayou's Meeting with Zaryckyj

         The 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.

         According 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 ¶ 15).

         Zaryckyj 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. (Id.).

         Kamayou 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).

         As it 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. 215: 4-6).

         According 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).

         Kamayou 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.[1] (Plaintiff's SUF, at ¶ 61).

         D. Code of Conduct Disciplinary Process

          On 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).

         In 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).

         On 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, 2013. (Id.).

         Notwithstanding 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).


         Following 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.


         When 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 ...

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