Tun ex rel. Tun v. Fort Wayne Community Schools, No. 1:03CV217.

CourtUnited States District Courts. 7th Circuit. United States District Court of Northern District of Indiana
Writing for the CourtCosbey
Citation326 F.Supp.2d 932
PartiesBrandon TUN, by his next friends, David TUN and Denise Tun, Plaintiff, v. FORT WAYNE COMMUNITY SCHOOLS, et al., Defendants.
Decision Date22 July 2004
Docket NumberNo. 1:03CV217.
326 F.Supp.2d 932
Brandon TUN, by his next friends, David TUN and Denise Tun, Plaintiff,
v.
FORT WAYNE COMMUNITY SCHOOLS, et al., Defendants.
No. 1:03CV217.
United States District Court, N.D. Indiana, Fort Wayne, Division.
July 22, 2004.

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COPYRIGHT MATERIAL OMITTED

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William Randall Kammeyer, Hawk Haynie Kammeyer & Chickedantz LLP, Fort Wayne, IN, for Plaintiff.

Andrew Sean Williams, Hunt Suedhoff Kalamaros LLP, Craig R. Patterson, Matthew J. Elliott, Beckman Lawson LLP, Scott L. Bunnell, Hunt Suedhoff Kalamaros LLP, Wendy W. Davis, Beckman Lawson LLP, Fort Wayne, IN, for Defendants.

MEMORANDUM OF DECISION AND ORDER

COSBEY, United States Magistrate Judge.


I. INTRODUCTION

Imagine you are taking a shower in your high school locker room when some guy comes in and takes your picture. Would you be shocked if that led to your being expelled for public indecency? What if the guy handed you the negative, do you now possess pornography? These questions essentially frame what this case is about, because our Plaintiff, Brandon Tun ("Tun"), was charged with and later expelled from school for just those violations.

More precisely, the school's hearing officer ordered Tun expelled for "allowing" another student to take photos of him while showering. Tun thinks this is a bit heavy-handed, so he has made a federal lawsuit out of it. Of course, there is more to the tale, as the reader will soon discover, but at its core it asks this legal question: Is it a violation of a student's substantive due process rights to expel him for "public indecency" simply because his photograph was taken while showering in a school locker room?

Tun, by his parents, brings this lawsuit under 42 U.S.C. § 1983, alleging that his expulsion from Wayne High School ("Wayne") violated his due process rights. Tun also asserts various state law causes of action under this Court's supplemental jurisdiction. 28 U.S.C. § 1367. The Defendants are Fort Wayne Community Schools ("FWCS"), Wayne's principal, Joselyn Whitticker ("Whitticker"), two Wayne wrestling coaches, Gregory Rhodes ("Rhodes") and David Mohr ("Mohr"), and the expulsion hearing examiner, Judith Platz ("Platz") (collectively "the Defendants").

This matter is before the Court1 on the Defendants' motion for summary judgment and Tun's motion for summary judgment on his substantive due process claim. For the reasons supplied in this opinion, the Defendants' motion for summary judgment will be GRANTED in part and DENIED in part, and Tun's motion for summary judgment on his substantive due process claim against Whitticker and Platz will be GRANTED.

II. FACTUAL BACKGROUND

On February 5, 2003, Mohr, Wayne's photography teacher and assistant wrestling coach, became suspicious when he saw Tun, a member of the wrestling team, giggling while looking at some photo negatives. (Platz Aff., Ex. 9 at 2; Mohr Dep. at 27-32.) After asking Tun where he obtained the negatives, and learning they came from the wrestling team's manager, Constantine,2 (sometimes referred to in

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the record as "Konstyantyn"), Mohr confiscated them and noticed that they depicted four nude boys showering in Wayne's locker room. (Id.)

Mohr took the negatives to his office and showed them to Rhodes, the head wrestling coach. (Id.) Mohr then took the negatives to John Hester ("Hester"), a Wayne administrator, who asked Mohr to develop the negatives to more clearly determine who was involved. (Id.) After developing the negatives, Mohr handed the prints to Hester; he later noted that the photographs were on film issued to students in his photography class. (Id.)

Wayne officials then began an investigation, headed by assistant principal Eric Augsburger ("Augsburger"). During that investigation, Augusburger obtained written statements from the four boys in the photos, as well as Constantine, who turned out to be the photographer. (Platz Aff., Ex. 2-7.) Constantine alleged that the four boys asked him to take their picture. (Id., Ex. 4.) This confirmed Mohr's suspicions that Constantine would not have initiated this conduct on his own. (See Mohr Dep. at 32.)

One of the boys reported that they "play[ed] along with" the photo shoot because they "didn't know there was any film in the camera." (Id., Ex. 2.) Another stated that he "wasn't worried" about his picture being taken because he "didn't think the [photo lab] would develop the pictures." (Id., Ex. 3.) For his part, Tun admitted that the whole thing was "a stupid idea" but that everyone was "just joking around[.]" (Id., Ex. 6.) Nevertheless, Tun now claims, although he did not say so at his expulsion hearing, that he objected when Constantine started to take the photos, telling him to "get out of here." (Tun Dep. at 47.)

Augsburger reported the results of his investigation to Whitticker, who ordered him to suspend Tun and the other boys for public indecency, pending a further investigation. (Whitticker Dep. at 6-7.) Several days later, Whitticker and various Wayne administrators met with each boy and his respective parents. (Id. at 18.) Prior to meeting with Tun and his parents, Whitticker showed the four unredacted photographs to each set of parents, so all the other parents saw photographs of all four boys in the shower. (Id. at 21.) However, because some parents complained about revealing the contents of the photos to strangers, by the time the Tuns met with Whitticker, they were only shown those parts of the photos that depicted Brandon.3 (Id.)

At about the same time, Platz, who eventually would be the expulsion examiner, discussed the case with FWCS's Security Director, John Weicker ("Weicker"). In that discussion, Platz offered the opinion that Wayne school officials should file for expulsion, which Weicker passed on to Augsburger. (See attachment to December 29, 2004, letter of attorney Elliott.)

Following the parent meetings, Whitticker began expulsion proceedings based on alleged violations of Rule 22 and Rule 24 of the FWCS Behavior Code. (Platz Aff., Ex. 1.) Rule 22 prohibits "[p]articipating in inappropriate sexual behavior including ... public indecency on school property[.]" (Platz Aff., Ex. 12 at 12.) Rule 24, entitled "Pornographic Material," prohibits "[p]ossession and/or distribution of pornographic material which would reasonably be considered offensive by community standards for students, which are without redeeming social value[.]" (Id.)

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On February 18, 2003, Platz presided over Tun's expulsion hearing. (Platz Aff., Ex. 9.) At that hearing, the written statements of the boys and of Mohr were read into the record. (Id. at 3-5.) Platz then engaged in the following colloquy with Tun:

HO [hearing officer — Platz]: Brandon, this is your opportunity to respond to the information that's been presented. Um, do you ___________ the information that's presented is accurate?

BT [Tun]: As far as what?

HO: Whatever was presented, you had a written statement that was submitted, and the photos that were taken.

BT: No.

HO: What don't you agree with?

BT: No, I agree with it.

HO: Speak clearly.

BT: The thing I don't agree with is the dates and when they said it happened. I'm not sure, but from what I remember I thought it was after sections, Saturday, February 1st.

HO: Okay. There were pictures taken. The young man was in the camera, in the locker room with a camera?

BT: Yes.

HO: And he did appear to be taking pictures?

BT: That's what it appeared to be. I didn't know there was film in the camera and [he] was actually gonna take pictures of us.

HO: And did you ever ask him to stop, taking photos or acting like he was taking photos?

BT: (Inaudible)

HO: Did he ask you or did anyone in your group ask him to take pictures?

BT: No.

HO: So at the time you knew he had a camera, you knew he was acting as though he was taking film.

BT: Yes.

HO: You did not ask him to stop, correct? Were you upset at the time he was doing it?

BT: I wasn't happy about it. I didn't really care cause I was taking a shower.

HO: Did you pose?

BT: No, I was taking a shower.

(Id. at 5-6.)

Tun's attorney also briefly questioned Tun and then offered oral argument, during which he correctly noted that FWCS's Behavior Code does not permit expulsion for a violation of Rule 24, the possession of pornographic material. (Id. at 7-8; see Platz Aff., Ex. 12 at 12.) Thus, he argued that Tun could only be expelled if there had been a violation of Rule 22, but under that rule Tun's behavior could not be deemed "inappropriate sexual behavior" or "public indecency," because the only thing he did was take a shower in the locker room after wrestling practice. (Id. at 8.)

Nevertheless, on February 24, 2003, Platz issued a written decision expelling Tun until May 30, 2003, for violating Rules 22 and 24 (Platz Aff. Ex. 10), a decision she supported with these findings:

Brandon Tun allowed another Wayne High School student to take photographs of him while nude in the boys' locker room. Brandon did not ask the student to stop taking pictures. He did not report the incident to any adults at Wayne High School.

Brandon was in possession of the negatives of the photographs of himself and three other male students.

(Id. at 6.)

Tun appealed Platz's decision, and on March 19, 2003, Platz's decision was reversed by a FWCS administrator, permitting

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Tun to return to Wayne. (Platz Aff., Ex. 11.) Because of this reversal, Tun's disciplinary record does not reflect his expulsion. (Platz Aff. ¶ 6) Nevertheless, as a result of the expulsion, Tun missed about six weeks of school and some extracurricular activities.

On June 13, 2003, Tun filed this action. However, his complaint is a confusing mix of legal and factual assertions, but his briefs assert three broad claims.

First, Tun alleges a procedural due process violation under the Fourteenth Amendment concerning his expulsion, specifically that his procedural due process rights were violated by Platz's alleged ...

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2 practice notes
  • In re Haney, CIVIL ACTION NO. 18-02456
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 16, 2018
    ...260, 263 (5th Cir. 1985); E.K. v. Stamford Bd. of Educ., 557 F. Supp. 2d 272, 276-77 (D. Conn. 2008); Tun v. Fort Wayne Cmty. Sch., 326 F. Supp. 2d 932, 944 (N.D. Ind. 2004), rev'd sub. nom. on other grounds by Tun v. Whitticker, 389 F.3d 899, 904 (7th Cir. 2005); Caston v. Benton Pub. Sch.......
  • J.S. ex rel. Duck v. Isle of Wight County School, No. 2:05 CV 76.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 25, 2005
    ...(holding that a student has no due process right to cross-examine witnesses in a disciplinary hearing); Tun v. Fort Wayne Cmty. Sch., 326 F.Supp.2d 932, 944 (N.D.Ind.2004) (holding that school's refusal to allow student facing expulsion to view witnesses' written statements or to confront w......
2 cases
  • In re Haney, CIVIL ACTION NO. 18-02456
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • August 16, 2018
    ...260, 263 (5th Cir. 1985); E.K. v. Stamford Bd. of Educ., 557 F. Supp. 2d 272, 276-77 (D. Conn. 2008); Tun v. Fort Wayne Cmty. Sch., 326 F. Supp. 2d 932, 944 (N.D. Ind. 2004), rev'd sub. nom. on other grounds by Tun v. Whitticker, 389 F.3d 899, 904 (7th Cir. 2005); Caston v. Benton Pub. Sch.......
  • J.S. ex rel. Duck v. Isle of Wight County School, No. 2:05 CV 76.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • March 25, 2005
    ...(holding that a student has no due process right to cross-examine witnesses in a disciplinary hearing); Tun v. Fort Wayne Cmty. Sch., 326 F.Supp.2d 932, 944 (N.D.Ind.2004) (holding that school's refusal to allow student facing expulsion to view witnesses' written statements or to confront w......

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