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Rosenfeld v. Ketter

decided: May 27, 1987.


Appeal from a grant of summary judgment of the United States District Court for the Western District of New York, John T. Elfvin, Judge, rejecting plaintiff's claim that his suspension by university officials violated his due process and first amendment rights. Affirmed.

Author: Winter

FEINBERG, C.J., KEARSE and WINTER, Circuit Judges.

WINTER, Circuit Judge.

Alan Rosenfeld appeals from a grant of summary judgment dismissing his complaint against three officials of the State University of New York at Buffalo ("SUNYAB" or "University"). Rosenfeld's complaint sought, inter alia, declaratory relief and damages pursuant to 42 U.S.C. § 1983 (1982) for alleged deprivations of his due process and first amendment rights as a result of disciplinary action taken against him. We affirm.


The facts are essentially undisputed. In February 1982, Rosenfeld was a third-year law student at SUNYAB, Students had scheduled a rally for the evening of February 26 to protest the University's plan to convert the student union, known as Squire Hall, into a facility for the dental school. The students planned to remain in Squire Hall past its 2:00 a.m. closing time. Rosenfeld and other students intended to be present at the rally as "legal observers" to witness any arrests and prevent violence.

On the afternoon of February 26, Rosenfeld described his plans to Ronald Stein, assistant to University President Robert Ketter. Stein informed him that the building would be closed at 2:00 a.m. the next morning and that anyone who remained after being told to leave would be arrested pursuant to President Ketter's instructions. Stein stated that no exceptions would be made for "legal observers." Stein relayed Rosenfeld's plans to Ketter, who reiterated his instructions to arrest anyone who did not leave the building. Stein then conveyed Rosenfeld's plans and Ketter's instructions to Lee Griffin, director of public safety at SUNYAB, and Griffin's assistant, John Grela.

That evening, Rosenfeld attended the Squire Hall rally. At approximately 2:00 a.m. on February 27, Griffin announced to those in the building that they no longer had permission to remain and that they had ten minutes to leave. He further stated that those who did not leave would be arrested and that if they were students, they would also be suspended. Rosenfeld concedes that Griffin's general announcement was repeated several times and that Griffin and Grela personally told him that he too would be arrested if he remained in the building. At some point thereafter, Rosenfeld attempted "once again" (in his words) to explain to Griffin that he was present not as a participant in the rally, but only as a witness to the arrests and would voluntarily leave the building after the arrests were completed. Griffin told Rosenfeld that he would not be allowed to observe because he would be arrested if he did not leave the building.

At about 2:40 a.m., Rosenfeld, then the sole "legal observer" remaining in the building, was arrested and charged with third-degree criminal trespass. Following his arrest, he was served with a notice indicating that he had been "temporarily suspended immediately as a student," which meant that all of his "rights and privileges as a University student [we]re suspended" and that he was "barred from participating in any University activity or entering onto or being in any property owned or operated by [SUNYAB]." The notice did not state the duration of the temporary suspension, but the attached summons did indicate that a formal hearing before the Hearing Committee for the Maintenance of Public Order was scheduled for March 20.

Rosenfeld was released from custody sometime before 4:00 a.m. on February 27. Later that day, he requested and received an informal hearing before President Ketter concerning his suspension. At the hearing, Ketter concluded that Rosenfeld might continue to disrupt the orderly operations of SUNYAB and therefore declined to remove the temporary suspension. Two days later, on March 1, Rosenfeld received a second informal hearing before Steven Sample, who had replaced Ketter as president earlier that day. Sample lifted Rosenfeld's temporary suspension on March 3.

The formal hearing, originally scheduled for March 20, was held on March 13. The Hearing Board found that Rosenfeld had violated University Rule 535.3g, which prohibits persons from refusing to leave a building after being told to do so by an authorized administrative officer. Rosenfeld was therefore placed on disciplinary probation for the remainder of the spring 1982 semester.

On July 1, 1982, Rosenfeld commenced this action pursuant to 42 U.S.C. § 1983 seeking declaratory relief and damages. On December 10, 1986, Judge Elfvin granted summary judgment against him. On appeal, Rosenfeld limits his arguments to two claims: first, that his suspension on the morning of February 27 without a pre-deprivation hearing violated his right to due process; and, second, that the provisions of the suspension order prohibiting him from entering SUNYAB property violated his first amendment rights. Finding these claims to be without merit, we affirm.


(1) Due Process ...

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