NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

________________ No. 1 1

- 4033

________________ MICHAEL OSEI,

Appellant

v. TEMPLE UNIVERSITY, of the Commonwealth System of Higher Education;

DR. MIA K. LUEHRMANN, Associate Dean of Undergraduate Studies ANDREA C. SEISS, Senior Associate Dean of Students; DR. ROBERT J. LEVIS, Department of Chemistry, Chairman Professor;

DR. GRANT KROW, Professor of Chemistry; DR. ANNE WEAVER HART, Individually and in her Official Capacity as Presid ent of Temple University; BRIAN C. FOLEY, Individually and in his Official Capacity as Vice Chair, University Disciplinary Committee, Temple University; DR. KEITH GUMERY, Individually and in his Official Capacity as Vice Chair,

University Disciplinary Comm ittee, Temple University

________________ Appeal from the United States District Court for the Eastern District of Pennsylvania (D.C . Civil Action No. 2

- 1 0

- c v - 0 2 042 ) District Judge: Honorable C. Darnell Jones, II

________________ Submitted Under Third Circuit LAR 34.1(a)

March 5 , 2013 Before: RENDELL , AMBRO , and VANASKIE , Circuit Judges

(Opinion filed March 11, 2013 )2 ________________ OPINION

________________ AMBRO, Circuit Jud ge Appellant Michael Osei appeals the D istrict Court‟s order granting the Defendants‟ motion to dismiss his procedural due process claim . We affirm.
I. Osei was enrolled in a bachelor‟s degree program in healthcare management at Defendant Temple Univ ersity of the Commonwealth System of Higher Education (“Temple”)

. 1 Because Osei is originally from the Republic of Ghana, his first language is G hana Twi of the Akan (A sante) tribe. After receiving an alleged ly unfair grade in Defendant Dr. Grant Krow‟ s organic chemistry class, Osei sent Dr. Krow a series of e - mail s in December 2009

. His second e mail to Dr. Krow explained that an unfair grade would result in “a curse against [Dr. Krow‟s] life and family forever.” In the third e - mail , Osei explained : “I just want justice on you physically and spiritually. Your game is over! Mine begins. You played with the wrong person this time

. Cooperate to prevent things from escalating.” A follow up email warned: “ Mar[k] my words: The year 2010 will not sta rt well for you.” On January 12, 2010, the University Disciplinary Committee formally informed Osei that he had been charged with violating Temple ‟s Student Code of Conduct for

se nding “threatening e - mail s to Dr. Grant Krow in reference to receiving a po or grade

. ”

1 These facts are as alleged in Osei‟s Amended Complaint.3

It quoted a portion of Osei‟s second email to Dr. Krow and referred to a provision of the
Code that prohibits “[a]ny a ct o r threat of intimidation or physical violence toward another person including

. . . t hreatened assault or battery.” A Jan uary 28 “ Notice of Hearing” stated that a hearing on the alleged Code violation was scheduled for February 3 and that Dr. Krow would act as a witness, among others. The day bef ore the hearing Osei was informed that Dr. Mia Luehrmann ( Associate Dean of Und ergraduate Studies for the College of Science and Technology) would also be called as a witness. L ess than

t wenty minutes prior to the h earing, Osei was told that his other e - mail s to Dr. Krow would also b e presented at the h earing. Osei attended th e February 3 hearing with an attorney advi sor who was not allowed to participate . Dr. Krow did not ultimately attend, but others testified that Dr. Krow had “felt threatened,” “was worried about what to do,” and was “a little spooked” by Osei‟s emails. T he witnesses also referred to issues Osei had with another faculty member. Osei had a chance to speak at the hearing. H e apologized , offered letters of good character, and explained that his English was imperfect. Osei was determined to have violat ed t he Code of Conduct. At the sanctions phase of the hearing , Dr. Luehrmann testified to “a pattern of intimidation” by Osei that included several other faculty members. Osei was suspended until August 15, 2010 , required to attend anger management classes , and put on probation until graduation. Osei appealed, and the Appellate Board unanimously affirmed. Having exhausted his claims at the University level, Osei filed suit in the Eastern District of Pennsylvania , alleging , among other claims , a denial of pr ocedural due process

.4

After allowing Osei to file an Amended Complaint, the District Court dismissed his federal claims and declined to exercise supplemental jurisdiction over his remaining state claims

. Osei v. Temple Univ. of Commonwealth Sys. of Higher Educ. , No. 1 0

- 2042, 2011 WL 4549609 (E.D. Pa. Sept. 30, 2011)

. II. The District Court had jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1367. We have jurisdiction under 28 U.S.C. § 1291. We exercise plena ry review over a district court‟ s dismissal un der Federal Rule of Civil Procedure 12(b)(6). Byers v. Intuit, Inc. , 600 F.3d 286, 291 (3d Cir. 2010). Although we accept all factual allegations as true and construe the complaint in the light most favorable to the plaintiff, McTernan v. City of York , 5 77 F.3d 521, 526 (3d Cir. 2009), “ a complaint must do more than allege the plaintiff ‟ s entitlement to relief

. ” Fowler v. UPMC Shadyside , 578 F.3d 203, 211 (3d Cir. 2009) . Instead, it must allege facts “ sufficient to show that the plaintiff has a „ plausib le claim for relief. ‟ ” Id. (quoting Ashcroft v. Iqbal , 129 S.Ct. 1937 , 1950 (2009)

. III. Procedural due process requires school authorities to provide s tudents facing temporary suspensi ons with “ rudimentary precautions against unfair or mistaken findi ngs of misconduct and arbitrary exclusion from school. ” Goss v. Lopez , 419 U.S. 565, 581 (1975) . This includes “notice of the charges,” “an explanation of the evidence ” against the student , and “an opportunity to present his side of the story.” Id. Gos s specifically applied to suspensions of ten days or fewer

. Id. Nonetheless, what is required of due5

process is generally a function of: (1) “ the private interest that will be affected by the official action ”; (2) “ the risk of an erroneous deprivation o f such interest through the procedures used ” and “ the probable value, if any, of additional or substitute procedural safeguards ”; and (3 ) “ the Government‟ s interest, including the function involved and the fiscal and administrative burdens that the additio nal or substitute procedural requirement would entail. ” Mathews v. Eldridge , 424 U.S. 319, 335 (1976) ; see also Doe ex rel. Doe v. Todd C nty. Sch. Dist. , 625 F.3d 459, 462

– 6 3 (8th Cir. 2010) (noting that federal appellate courts have applied Mathews to d etermine what process is due beyond a ten

- day suspension )

. Pursuant to these factors , we agree with the District Court that O sei was afforded procedural due process on the face of his Amended Complaint. A lthough he was only
g iven one day‟s notice that Dr. Luehrman n w as scheduled to testify at his h earing, this

was sufficient notice given the context , and t here is no allegation that Osei objected at the time of the hearing or sought a continuance. Similarly, because the Notice of Disciplinary Action spe cifically referenced Osei‟s threatening e - mail s, there was no lack of notice that all his e - mail correspondence with Dr. Krow might b e considered

. Finally,
i n light of these e - mail s, we are not persuaded by Osei‟s argument that he was deprived of the oppo rtunity to confront Dr. Krow . To the extent Osei was charged with threats and intimidation, the emails spoke for themselves and he was given ample opportunity to clarify what he meant to communicate.
We are also not persuaded that references by witness es to prior incidents of alleged intimidation support a claim for a procedural due process violation. Goss6

requires that a student receive notice of the charges and an opportunity to explain his side of the story. There is no allegation that Osei was den ied the opportunity to challenge the witnesses‟ testimony or was unable to explain his side of any allegations against him. Finally, to any extent hearsay was permitted at Osei‟s hearing , the school did not have to abide by the same evidentiary standards as one would in a courtroom. See Newsome v. Batavia Local Sch. Dist. , 842 F.2d 920 , 926 (6th Cir. 1988) (citation omitted) (addressing long

- term suspensions under Mathews and endorsing the view that school disciplinary hearings need not adhere to common l aw rules of evidence).
Th us, even accepting the allegations in Osei‟s Amended Complaint as true, he has not pled sufficient facts to show a plausible procedural due process violation. T he District Court correctly dismissed th is claim , and we affirm

.