Murakowski v. University of Delaware

• Decision Date: 04 September 2008
• Docket Number: C.A. No. 07-475-MPT.
• Citation: 575 F.Supp.2d 571
• Parties: Maciej MURAKOWSKI, Plaintiff, v. UNIVERSITY OF DELAWARE, Defendant.
• Court: U.S. District Court — District of Delaware

575 F.Supp.2d 571

Maciej MURAKOWSKI, Plaintiff, v. UNIVERSITY OF DELAWARE, Defendant.

C.A. No. 07-475-MPT.

United States District Court, D. Delaware.

September 4, 2008.

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David Finger, Esq., Finger & Slanina, Wilmington, DE, for Plaintiff.

William E. Manning, Esq., James D. Taylor, Esq., Jennifer M. Becnel-Guzzo, Esq., Buchanan Ingersoll & Rooney, Wilmington, DE, for Defendant.

MEMORANDUM OPINION

MARY PAT THYNGE, United States Magistrate Judge.

Introduction

Plaintiff, Maciej Murakowski ("Murakowski"), who instituted his civil rights action pursuant to 42 U.S.C. § 1983 against the University of Delaware ("University") on August 1, 2007, challenges the University's right to discipline him for posting allegedly threatening comments on a website maintained on the University's server. In his verified complaint, Murakowski contends that his rights under the First and Fourteenth Amendments were violated as a result of disciplinary proceedings which concluded that Murakowski violated the University's Disruptive Conduct and Failure to Comply policies. As a result, he was suspended for one semester, banned from residence halls and place on Deferred Expulsion through graduation. On appeal, the University's Appellate Board upheld the hearing officer's decision and sanctions.

In its answer dated August 22, 2007, the University denies any constitutional violations, and notes that at the time of the hearing, Murakowski who was already on disciplinary probation for other infractions and by his conduct, disregarded a direct command by a senior University official.

On October 25, 2007, a scheduling order was entered which was supplemented on February 14, 2008. Pursuant to 28 U.S.C. § 636 and Fed.R.Civ.P. 73, the parties stipulated to the jurisdiction of the Magistrate Judge on January 22, 2008.

On March 17, 2008, Murakowski filed his motion for summary judgment. On April 9, 2008, the University filed its answering brief and opening brief on its cross motion for summary judgment. Briefing was completed on the motions on May 16, 2008.

This opinion addresses the parties' cross motions for summary judgment.

Facts

According to the parties' representations during the teleconferences on the scheduling orders and from the briefing, the relevant facts are not in dispute. The parties' spin on or interpretation of those facts, however, are.

At the time of the events described herein, Murkowski was a nineteen year old sophomore at the University. He began classes at the University in 2005. In June 2005, he established a website using the University's server, which contained essays authored by him addressing a variety of topics. Some of those topics reference violence and sexual abuse, which Murkowski admits were included for shock effect.

The University has a policy for student use of computing resources for home pages, which the priority purpose is for the institution "to carry out its responsibilities of education, research and public service." It allows students to use its resources for "personal use provided they abide by the policies and procedures governing such use." The policy requires students to "abide by the Policy for Responsible Computing" and "[t]hey assume full legal and moral responsibility for the content of their home pages." Under the policy, students

must abide by all local, state and federal laws that pertain to communication and to publishing. This includes laws on libel and copyright law. Copyright law pertains to all published and unpublished materials, including cartoons, pictures, graphics, text, song lyrics and sounds.

Regarding the right to privacy, the students are cautioned to "consider the public nature of information they disseminate on the Internet" and not to "assume that their information is restricted to only a close circle of friends, or even the campus community."

The University provides that it

will not impose any restraints on, nor make any effort to monitor the content of communications other than those imposed by applicable Federal, State or local laws, including laws regarding the right to privacy and laws which prohibit defamatory material. Users of the University's information system are advised that their communications are subject to such laws and that the consequences of violation can be severe.

Under the policy, students are warned that they cannot use their home pages for commercial activity or for fund-raising for commercial or non-commercial organizations, except for University-related organizations or events. Further, the policy clearly notes that the University name or logos may not be used and that the responsibility for content of the home pages remains solely with the authors/students and that their opinions and views are not those of the University.

At the time of the charges which lead to the present disciplinary action under consideration, Murakowski was on Disciplinary Probation through the end of the Fall 2007 semester for violating the Responsible Computing Policy by copying or distributing copyrighted material through his computer. That disciplinary sanction was imposed after an Administrative Hearing which occurred on March 15, 2007. Thereafter the restrictions were re-imposed after the Appellate Board review on April 25, 2007. In addition, he was restricted "from accessing the University network using his computer (either from [his] residence hall room, another resident's room or port, via a wireless connection, dial-up, PIP access or another other means) for thirty days" from the date of the original infringement notification which occurred in February 2007. In explaining the import of Disciplinary Probation, the letter from the Appellate Board noted:

So that there is no misunderstanding, disciplinary probation is defined as a period of observation and review during which you must demonstrate your willingness and ability to comply with all University regulations.

Regarding the present charges, they initially arose in relation to the writings contained on his website.¹ His essays or writings include:

φ&sign How to Skin a Cat in which Murakowski discusses one way to literally skin a cat and keep the skin intact. The article includes pictures of a kitten in different stages of the process including breaking its "frail little neck," and allegedly shows a dead cat after accomplishing this feat. The article begins with the materials necessary, including "a cat, preferably alive" and "a pair of sharp scissors" which may be substituted with a knife. In steps 2 and 3 of the essay, he describes in fairly graphic detail, the cuts needed to effectively and pristinely remove the skin, in which if the head fur is not used, the skinning is completed whereby the reader is advised to either "bury the cat or clean it and eat it." If the head is to be skinned, smaller blades, such as a scalpel or razor blade, are recommended to complete that process. Figure 6 allegedly is a picture of the skinning process of the cat's head. He notes "many legitimate reasons for wanting cat skin," such as for clothing (coat, glove or scarf), bedding, to attract and trap more cats or a yurt.² This article apparently was published on March 12, 2007.

φ&sign The Relationship Advice Pamphlet (for girls in a relationship), in which Murakowski appears to mimic the advice columns found in various newspapers or magazines. In one part of the "advice column," a hypothetical question is posed: "My boyfriend punches his friends in the arm, as a form of greeting. He started doing this to me, except really hard and in the stomach, when I told him I might be pregnant ... What should I do?" His response is "[y]ou should feel proud that he's treating you like one of his male friends. This sort of abuse, and most other forms, is perfectly acceptable in an otherwise healthy relationship. Above all, remember that he's only hitting you because he loves you. And to kill the baby." In another hypothetical question, the concern expressed is burning on urination with redness of the area, which when such symptoms were mentioned to the boyfriend, he reacts guiltily and claims that it is a normal part of puberty. Murakowski's advice is to believe the boyfriend and eschew seeking medical advice. In response to the question of "how do I know I'm in a relationship," Murakowski comments "[y]ou are tied up in a closet for the majority of your waking hours, except for brief interludes of violent, painful sex with a masked man who insists you call him `Master.'" In the same article, Murakowski contends that "STDs are just another way to show you that he cares."

φ&sign A posting which discusses Sexual Assault Awareness Day,³ in which Murakowski purposes to obtain a sexual awareness t-shirt and "wear it while I'm raping some drunk girl in a dark alley. It'd be funny. Or maybe ironic. She'd certainly be aware of sexual assault. And that's ironic because the shirts are about promoting sexual assault awareness." Later in the same essay, he claims to have looked online in Wikipedia for the possible predictors for being a rapist. After the listing of the various characteristics,⁴ Murakowski cautions "[r]eading over those, all I can say is `S___.' No matter how I interpret them, s___. Don't walk alone with me at night, ladies." He also asserts that every man is a potential rapist. In another section in the same essay, Murakowski critiques the seminar regarding young black womanhood by commenting, "I always knew that letting the negroids have their music was a bad idea."

φ&sign In another article captioned "Happy birthday to me," Murakowski includes in the litany of his birthday wishes, "A small Asian girl. I would keep her tied up in the closet (like the brother does with his) and do unspeakable things to her when I got bored. It would be better than pretending to be a cripple" (another one of his birthday wishes). He also asks for a katana,⁵ to flip out with and to...