APPENDICES

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APPENDIX A

PRECEDENTIAL

UNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT

____________

Nos. 15-2823, 16-3837, 16-3959____________

ANGELA BORRELL,Appellant in 16-3837

v.

BLOOMSBURG UNIVERSITY

ARTHUR F. RICHER; GEISINGER MEDICALCENTER,

Appellants in 15-2823

MICHELLE FICCA,Appellant in 16-3959

____________

On Appeal from the United States District Court forthe Middle District of Pennsylvania

(D.C. No. 3-12-cv-02123)District Judge: Honorable A. Richard Caputo

____________

Argued May 24, 2017Before: HARDIMAN, ROTH, and FISHER, Circuit

Judges.

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(Filed: August 30, 2017)

Barry H. Dyller [Argued]Theron J. SolomonDyller Law Firm88 North Franklin StreetGettysburg HouseWilkes-Barre, PA 18701

Attorneys for Plaintiff–Appellee–Cross Appel-lant Borrell

Thomas S. GiottoJaime S. Tuite [Argued]Tiffany A. Jenca, Esq.Buchanan Ingersoll & Rooney301 Grant StreetOne Oxford Centre, 20th FloorPittsburgh, PA 15219

Attorneys for Appellants Geisinger MedicalCenter and Arthur Richer

John G. Knorr, III [Argued]Maryanne M. LewisOffice of Attorney General of PennsylvaniaStrawberry SquareHarrisburg, PA 17120

Keli M. NearyPennsylvania State PoliceOffice of Chief Counsel1800 Elmerton AvenueHarrisburg, PA 17110

Attorneys for Appellee Michelle Ficca

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Seth A. GoldbergPhilip H. LebowitzDuane Morris30 South 17th StreetUnited Plaza Philadelphia, PA 19103

Attorneys for Amicus Hospital & HealthsystemAssociation of Pennsylvania

____________

OPINION OF THE COURT____________

HARDIMAN, Circuit Judge.

This appeal—which raises questions involvingthe state action doctrine and the Due Process Clauseof the Fourteenth Amendment—has important rami-fications for private hospitals that partner with pub-lic universities. Angela Borrell, a student working ata private hospital through a public university’s clini-cal program, was dismissed for refusing to take adrug test in violation of hospital policy. She sued un-der 42 U.S.C. § 1983, claiming she was deprived ofher property interest in the program without dueprocess. Contrary to the judgment of the DistrictCourt, we hold that Defendants are entitled to judg-ment as a matter of law.

I

In 2007, Geisinger Medical Center (Geisinger orGMC) partnered with Bloomsburg University to es-tablish the Nurse Anesthetist Program (NAP or pro-gram) a private hospital, Geisinger runs the “ClinicalTraining portion of the Program” for the aspiringnurse anesthetists while Bloomsburg, a public uni-versity, teaches them in the classroom. App. 1510.The Program operates subject to a written collabora-tion agreement that provides, among other things,

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that Geisinger and Bloomsburg will cooperate by: es-tablishing a joint admissions committee, staffing anadvisory committee, agreeing on how many studentsto admit, approving guidelines for clinical training,and promoting and marketing the Program. In otherways, Geisinger’s and Bloomsburg’s principal roles inthe Program remain distinct. Geisinger provides cer-tificates upon completion of its clinic and Bloomsburgconfers Master of Science degrees to students whocomplete both the coursework and the clinical com-ponent.

NAP students in Geisinger’s clinic administermedical care to patients under the supervision ofGeisinger employees. Accordingly, the collaborationagreement states that Geisinger’s policies—includingits drug and alcohol policy— apply to NAP studentswhile participating in the clinic. See App. 1512. Theagreement also provides that Geisinger has sole au-thority to remove an enrollee from the clinical por-tion of the NAP due to unsatisfactory performance orfailure “to comply with applicable policies and stand-ards of Geisinger.” App. 9. Likewise, Bloomsburg’sStudent Handbook requires students to “comply withthe drug and alcohol policies and drug testing proce-dures as required by agencies affiliated with the De-partment of Nursing,” which includes Geisinger.Borrell v. Bloomsburg Univ., 63 F. Supp. 3d 418, 425(M.D. Pa. 2014) (quoting policy).1

1 Bloomsburg’s Student Handbook “also sets forth a ‘review pro-cess’” for students suspected of violating its terms. Borrell, 63 F.Supp. 3d at 426. The Student Nurse Anesthetist Handbook inthe collaboration agreement allows students to “initiate agrievance” if they have a complaint about a disciplinary actionand commits “to being reasonable in an attempt to correct [any]

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Geisinger’s drug and alcohol policy applies to allits employees and contractors (including clinical stu-dents working there). The policy states that drugtests “may be administered upon reasonable suspi-cion of substance abuse, (this may include [individu-al] situations . . . where HR is made aware of allegeddrug/alcohol use and deems it as reasonable cause totest the employee).” App. 1529. Any Geisinger work-er “who refuses to cooperate in any aspect [of thetesting process] . . . shall be subject to disciplinaryaction, including termination, for a first refusal orany subsequent refusal.” App. 1527. The policy doesnot provide for any pre-termination hearing or pro-cess.

The Director of the NAP at all times relevant tothis case was a Geisinger nurse anesthetist namedArthur Richer. In that capacity, Richer became ajoint employee of Geisinger and Bloomsburg, withBloomsburg picking up a quarter of his salary. Rich-er managed the clinical component of the NAP atGeisinger while Michelle Ficca (Bloomsburg’s Chairof Nursing) oversaw the Program’s academic compo-nent.

In 2012, Richer terminated Angela Borrell for vi-olating Geisinger’s drug and alcohol policy by refus-ing to take a drug test when asked. Borrell, who pre-viously had been a registered nurse at GMC, enrolledin the NAP in 2011 and began her clinical work in2012. In September 2012, another nurse reported toGeisinger’s Assistant Director of the NAP thatBorrell used cocaine and “acted erratically” on a re-cent trip to New York. Borrell, 63 F. Supp. 3d at 427.

offense.” Id. The purported violation in this case was of GMC’sdrug and alcohol policy, which provides no grievance process.

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This claim was relayed to Richer, who had previously“noticed that Borrell appeared disheveled on a fewoccasions.” Id. Richer discussed the allegation withthree other GMC employees and Ficca—his counter-part at Bloomsburg. Richer and a member ofGeisinger’s Human Resources Department then metwith Borrell and asked her to take a drug test. Dur-ing this meeting, which lasted about an hour, Borrellasked several questions about the reason for the testand called her mother for advice. Borrell eventuallyrefused to take the drug test, stating she “did notwant her record to show that she submitted to adrug/urine screen.” Id. at 428. Richer informedBorrell that she would have “no option to test later”and claims he told Borrell she might be terminatedfor refusing the test, but Borrell responded that shewas willing to “face the consequences.” Geisinger Br.10. Borrell claims she was warned of “consequences”generally, but not termination. Borrell, 63 F. Supp.3d at 428.

After consulting with Geisinger’s Human Re-sources Department, Richer decided to dismissBorrell from the Program the next day. He claims hedid so in his capacity as Director of the clinical train-ing portion of the NAP, and that Bloomsburg andFicca played no part in the decision—though he in-formed them of it. In a September 25, 2012 letter,Richer informed Borrell that she was terminatedfrom the NAP for her refusal to take a drug test. Adraft of that letter was circulated among GeisingerHuman Resources, Ficca, and Richer, who “all pro-vided comments and suggestions as to the contents ofthe letter.” Id. at 429. Richer then sent a final copy toHuman Resources and Ficca. The letter was printedon joint GMC/Bloomsburg stationery and Richer andFicca signed it. Richer signed as the “Director of the

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NAP,” and Ficca signed indicating that she “reviewedthe above information and agree[d] with the decisionto terminate Angela Borrell from the . . . Program.”Id. (first alteration in original).

After she received the letter terminating herfrom the Program, Borrell tried to contact “Richerand others at both Geisinger and Bloomsburg . . . tostate her willingness to submit to a drug test.” Id.That request was denied. Borrell then requested, butdid not receive, a formal hearing from Bloomsburg tocontest her termination from the Program. Ficca re-plied that since Bloomsburg had to honor Geisinger’sdrug policy, disqualification from GMC’s clinic madeher ineligible to complete her coursework at Blooms-burg necessary to complete the Program.

Borrell then commenced a § 1983 action in theUnited States District Court for the Middle Districtof Pennsylvania against GMC, Richer, Bloomsburg,and Ficca for, among other things, violation of herdue process right to a pre-deprivation hearing. TheDistrict Court granted Borrell’s motion for summaryjudgment with respect to GMC, Richer, and Ficca,holding them liable for denying Borrell due process.Essential to its holding, the District Court found thatGMC and Richer were state actors and that Ficcawas not entitled to qualified immunity. The Courtthen concluded that “because Defendants deprivedBorrell of a property interest while acting under col-or of state law when they dismissed her from theNAP without due process, her motion for summaryjudgment as to liability on the procedural due pro-cess deprivation of property interest claim will begranted.” Id. at 423. The case was then tried to a ju-ry on the issue of damages. The jury awarded Borrell$415,000 in compensatory damages and $1,100,000

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in punitive damages. Later granting the Defendants’remittitur motions, the District Court reducedBorrell’s compensatory damages to $250,000 and herpunitive damages to $750,000.

GMC, Richer, and Ficca timely appealed the ad-verse summary judgment along with other issuesfrom the subsequent trial.

IIThe District Court had jurisdiction under 28

U.S.C. §§ 1331 and 1343. We have jurisdiction under28 U.S.C. § 1291. We exercise plenary review overboth “orders entered on motions for summary judg-ment,” Mancini v. Northampton Cty., 836 F.3d 308,313 (3d Cir. 2016), and decisions regarding qualifiedimmunity as pure legal issues, Sharp v. Johnson,669 F.3d 144, 159 (3d Cir. 2012).

Summary judgment should be granted only “ifthe movant shows that there is no genuine dispute asto any material fact and the movant is entitled tojudgment as a matter of law.” Fed. R. Civ. P. 56(a).In considering a summary judgment decision, “weview the underlying facts and all reasonable infer-ences therefrom in the light most favorable to theparty opposing the motion.” Blunt v. Lower MerionSch. Dist., 767 F.3d 247, 265 (3d Cir. 2014) (citationomitted).

IIIThe primary issue on appeal is whether GMC,

Richer, or Ficca are liable for denying Borrell dueprocess when she was dismissed from the NAP. Be-cause (A) GMC and Richer are not state actors withrespect to Richer’s decision to dismiss Borrell and (B)Ficca is entitled to qualified immunity for her in-

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volvement in Borrell’s termination, we hold that noDefendant is liable to Borrell.

AFirst, we must determine whether the conduct of

GMC and Richer should be considered state action.“The Fourteenth Amendment governs only stateconduct, not that of private citizens.” Kach v. Hose,589 F.3d 626, 646 (3d Cir. 2009). So Borrell’s claim isnot cognizable unless she was harmed “under color oflaw,” a standard identical to the FourteenthAmendment’s “state action” requirement. UnitedStates v. Price, 383 U.S. 787, 794 n.7 (1966).

In Kach, this Court summarized “three broadtests generated by Supreme Court jurisprudence todetermine whether state action exists” in close casesand they are all “fact-specific.” 589 F.3d at 646.Those tests are: “(1) whether the private entity hasexercised powers that are traditionally the exclusiveprerogative of the state; (2) whether the private par-ty has acted with the help of or in concert with stateofficials; and (3) whether the state has so far insinu-ated itself into a position of interdependence with theacting party that it must be recognized as a jointparticipant in the challenged activity.” Id. (altera-tions and citation omitted). Of seminal importance tothis appeal, we have clarified that the relevant ques-tion is not whether the private actor and the statehave a close relationship generally, but whetherthere is “such a close nexus between the State andthe challenged action that seemingly private behav-ior may be fairly treated as that of the State itself.”Leshko v. Servis, 423 F.3d 337, 339 (3d Cir. 2005)(emphasis added) (citation omitted). In other words,the government must be “responsible for the specificconduct of which the plaintiff complains.” Blum v.

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Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis omit-ted). And this is true even when the actor is em-ployed by the state. As we explained in Mark v. Bor-ough of Hatboro, “an otherwise private tort is notcommitted under color of law simply because thetortfeasor is an employee of the state.” 51 F.3d 1137,1150 (3d Cir. 1995). Contrary to Borrell’s argument,then, Richer’s joint employment with Bloomsburgand GMC’s partnership with Bloomsburg with re-spect to the Program do not “end the inquiry” on thestate actor question. Borrell Br. 33.

Rather, the pertinent question is whether Richerwas wearing his Geisinger hat or his Bloomsburg hatwhen he decided to terminate Borrell. Actions taken“in the ambit of [non–state motivated] pursuits” areexcluded from state action. Screws v. United States,325 U.S. 91, 111 (1945). The record shows that Rich-er’s actions were authorized by Geisinger to enforceits drug and alcohol policy, and not pursued underany authority granted him by the state. Simply put,Richer did not need permission from Bloomsburg tofire a Geisinger worker who violated a hospital poli-cy.

In concluding that Geisinger acted under color ofstate law, the District Court focused on the fact thatit “was a willful participant in joint activity, theNAP, with Bloomsburg.” Borrell, 63 F. Supp. 3d at436. But as we noted, that should have been the be-ginning of the inquiry, not the end of it. The govern-ment must have also been closely involved with thedecision to terminate Borrell for that action to be“fairly attributable to the state.” Crissman v. DoverDowns Entm’t Inc., 289 F.3d 231, 245 n.18 (3d Cir.2002).

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The District Court found, and Borrell argues,that Geisinger’s termination of Borrell is “fairly at-tributable to the state” for two main reasons: (1)Richer, a joint employee of GMC and Bloomsburg,terminated Borrell via a letter on “joint Bloomsburg-Geinsinger station[e]ry”; and (2) Ficca, a Bloomsburgemployee, was involved in the termination process byproviding input to Richer regarding Borrell’s termi-nation letter and by signing it. Borrell, 63 F. Supp.3d at 436. As discussed already, the fact that Richerwas a joint employee does not answer the question ofwhether his decision to enforce GMC’s drug and al-cohol policy by terminating Borrell was “caused bythe exercise of some right or privilege created by theState or by a rule of conduct imposed by . . . a personfor whom the State is responsible.” Lugar v. Ed-mondson Oil Co., 457 U.S. 922, 937 (1982). Richer’sdecision was to enforce the hospital’s preexisting pol-icy requiring employees to participate in drug testswhen asked, and GMC had already fired four othernurses for violating the same policy. NeitherBloomsburg nor its agreement with Geisinger playedany part in creating the policy enforced in this case;the agreement merely made clear that Geisinger’semployee policies would govern the behavior of clini-cal students while they were working at the hospital.

In light of the controlling legal principles wehave articulated, the question boils down to whichentity—the hospital or the university—exercised theauthority to terminate Borrell for a violation ofGeisinger policies. The District Court concluded thatbecause Ficca signed the termination letter and wasconsulted regarding its contents, “Bloomsburg andGeisinger jointly participated in terminating Borrellfrom the NAP.” Borrell, 63 F. Supp. 3d at 436. TheCourt also stated that because Richer terminated

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Borrell in his capacity as Director of the NAP, thedecision was made under the auspices of his em-ployment by Bloomsburg and therefore under thecolor of state law. Id. at 437.

The agreement between Geisinger and Blooms-burg indicates otherwise. It makes clear thatGeisinger retained the authority to unilaterally “ex-clude a Student from participation in the ClinicalTraining” if the student doesn’t comply with a GMCpolicy. App. 1514. And when Richer made the deci-sion to terminate Borrell for violating hospital policy,he acted in his capacity as a GMC employee, claim-ing he sought to maintain nursing standards at thehospital. And his capacity was not altered merely be-cause he discussed this decision with—and receivedinput on his letter from—Ficca and another joint-NAP employee. “Action taken by private entitieswith the mere approval or acquiescence of the Stateis not state action.” Kach, 589 F.3d at 649 (citationomitted). Ficca’s signature on the termination letterpurports to do nothing more than concur with Rich-er’s decision, which is not enough for state action.Rather, the state must have “exercised control overthe particular conduct that gave rise to the plaintiff’salleged constitutional deprivation.” Id. Under the col-laboration agreement, Bloomsburg had no such con-trol.

Notwithstanding his consultation with others,Richer made the decision to fire someone working atGMC due to her violation of a preexisting policy ofthe hospital, and he had the authority to do so basedon his position there. “[T]he authority of state offi-cials . . . was wholly unnecessary to effectuateBorrell’s dismissal from the NAP.” GMC Third-StepBr. 18. Accordingly, we must reverse the District

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Court’s holding that GMC and Richer were state ac-tors.

BTurning to the case against Ficca, we hold that

she is entitled to qualified immunity. We do so be-cause it was not clearly established that Ficca’sagreement with Richer’s decision, which she reason-ably believed to be within his authority as an em-ployee of GMC, violated Borrell’s constitutionalrights.

Qualified immunity protects “all but the plainlyincompetent or those who knowingly violate the law.”Malley v. Briggs, 475 U.S. 335, 341 (1986). If a gov-ernment official—in this case, Ficca—reasonablythinks her conduct complies with the law, she isshielded from liability. See Pearson v. Callahan, 555U.S. 223, 244 (2009). Ficca is entitled to qualifiedimmunity as long as she does not violate a “clearlyestablished” constitutional or federal right. Sharp,669 F.3d at 159 (quoting Saucier v. Katz, 533 U.S.194, 201 (2001)). “A right is clearly established forqualified immunity purposes where its contours are‘sufficiently clear that a reasonable official wouldunderstand that what [s]he is doing violates thatright.’” Id. (quoting Saucier, 533 U.S. at 202). In oth-er words, the application of the right to the issue athand must be “beyond debate.” Zaloga v. Borough ofMoosic, 841 F.3d 170, 175 (3d Cir. 2016).

The record indicates that it is hardly “beyond de-bate” that Ficca violated Borrell’s due process rights.Although many cases have concluded that graduatestudents at public universities have property inter-ests in continuing their education, see Borrell, 63 F.Supp. 3d at 458 (citing cases), those cases do notspeak to the right of a clinical student at a private

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hospital to a hearing or comparable process beforetermination—even if the natural consequence of thattermination is an inability to complete an education-al program. The District Court pointed to no caseseven suggesting such a right and we are aware of nosuch case. And the district court cases cited cannotclearly establish law for qualified immunity purposesin any event. See Camreta v. Greene, 563 U.S. 692,709 n.7 (2011).

Furthermore, there is no evidence of record tosuggest that Ficca could have done anything to stopRicher’s decision to deny additional process to Borrellbefore terminating her from the Program. Theagreement between Geisinger and Bloomsburg statesthat GMC “shall have sole authority and control overall aspects of Clinical Training.” App. 1512. Andwhile the agreement requires Geisinger to notifyBloomsburg before dismissing a student, Geisingerhad the unilateral authority to dismiss students fromthe clinical portion of the Program, which would pre-clude them from obtaining the certificate necessaryto become a nurse anesthetist. And if Ficca had noauthority over Richer’s decision to terminate Borrell,a reasonable official in Ficca’s position would nothave known that she owed Borrell any more process.

As for Ficca’s concurrence with Richer’s decisionto terminate Borrell, agreement is insufficient todemonstrate liability absent actual authority tomake the decision. And without actualdecisionmaking authority, Ficca’s edits, suggestions,and participation in the termination letter do notamount to a constitutional violation. Cf. McLaughlinv. Watson, 271 F.3d 566, 573 (3d Cir. 2001). Addi-tionally, any process provided by Ficca at Blooms-burg could not have forced Geisinger or Richer to

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change the decision to terminate Borrell from theclinical portion of the Program based on her violationof hospital policy. As Ficca notes by way of analogy, ifshe “had dismissed Borrell from the Program for . . .failing grades or cheating on an examination . . . noone would say that she was entitled to a hearingfrom Geisinger.” See Ficca Br. 25. Likewise, it’s notclear that Borrell was owed a hearing from Ficca be-fore Geisinger dismissed her from the Program.

To support her claim that Ficca supervised Rich-er’s termination decision, Borrell notes that Ficca re-sponded affirmatively when asked: “You are one per-son who Mr. Richer would need to consult [beforeterminating a clinical student], correct?” App. 329.But in context, Ficca had claimed she did not knowwhether Richer was the final decisionmaker on dis-missals of clinical students and merely asserted thatRicher likely had to “discuss[]” any such decisionwith other parties to make sure he was correctly ap-plying “policies that have been established.” App.328–29. Given the collaboration agreement’s re-quirement that Bloomsburg had to receive notice of atermination decision, this answer does not show thatFicca had authority to prevent Richer’s decision. Itshows only that she had to be notified of it.2

2 Borrell also claims that Ficca was “Richer’s direct supervisorat [Bloomsburg],” and is thus liable because she “did not takeany steps to prevent her subordinate Richer from sending thetermination letter.” Borrell Br. 61 (citing App. 553–54). But inthe deposition to which Borrell refers, Richer stated only thatFicca was “above” him “[i]n the University hierarchy.” App. 554.While Ficca supervised Richer for university business, she didnot supervise him in his other capacities—such as his GMC-related supervisory duties. Nothing in the NAP agreement gaveBloomsburg or Ficca authority to control a decision by

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In responding to Ficca’s qualified immunity ar-gument, Borrell seems to miss the relevant ques-tion—would a reasonable official have known thather actions violated a clearly established right? Evenif, as Borrell claims, Ficca should have known thatRicher’s actions were disciplinary and not academic,and Borrell was thus entitled to more process fromsomeone, this does not answer the question ofwhether Ficca was that person. Given all the factorsdiscussed herein, and given her reasonable under-standing that she could not have provided process forthe clinical dismissal even if she thought it was nec-essary in the abstract, the District Court should havegranted qualified immunity to Ficca.

IVFor the reasons stated, we will reverse the Dis-

trict Court’s summary judgment and remand thecase for entry of judgment in favor of Geisinger,Richer, and Ficca.

Geisinger or Richer to remove a student from GMC’s clinic, andthus the Program.

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Borrell v. Bloomsburg University et al.Nos. 15-2823, 16-3837, 16-3959

Judge Roth, concurring in part and concurring in thejudgment:

In regard to Part III.B, I would hold that Ficcaand Bloomsburg University’s participation in thedismissal of Borrell from the program was academic,not disciplinary. Although Borrell’s academic markswere satisfactory, once she had been dismissed fromthe clinical portion of the NAP program by Geisinger,she was no longer academically qualified to completethe NAP. For that reason, she was not being dis-missed from the Bloomsburg University portion ofthe program because she refused to take the drugtest. She was being dismissed because she was nolonger academically eligible to complete the program.Clearly, this action is academic, rather than discipli-nary.

Moreover, because Ficca and Bloomsburg Uni-versity’s action in dismissing Borrell from the pro-gram was not disciplinary, she in fact received all thedue process to which she was entitled. See, e.g.,Board of Curators of the University of Missouri v.Horowitz, 435 U.S. 78, 85 (1978).

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APPENDIX B

UNITED STATES DISTRICT COURTFOR THE

MIDDLE DISTRICT OF PENNSYLVANIA

ANGELA BORRELL,

Plaintiff,

v.

BLOOMSBURG UNI-VERSITY, GEISINGERMEDICAL CENTER, andARTHUR F. RICHER andMICHELLE FICCA intheir individual and offi-cial capacities,

Defendants.

)))))))))))))

CIVIL ACTION NO.3:12-CV-2123

AMENDED JUDGMENT IN A CIVIL ACTIONThe court has ordered that (check one):

the plaintiff (name) ____________________ recover fromthe defendant (name) ____________________ the amount ofdollars ($ ________), which includes prejudgment in-terest at the rate of ________%, plus post judgmentinterest at the rate of ________% per annum, alongwith costs.

the plaintiff recover nothing, the action be dis-missed on the merits, and the defendant (name)

____________________ recover costs from the plaintiff(name) __________________________________________________________.

Judgment is entered in favor of the Plaintiff,Angela Borrell and against Defendants,

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Geisinger Medical Center, Arthur F. Richerand Michelle Ficca, jointly and severally, inthe sum of $250,000 in compensatory damag-es. Judgment is entered in favor of PlaintiffAngela Borrell and against DefendantGeisinger Medical Center in the sum of$750,000 in punitive damages. Plaintiff isawarded $465,722 in fees for services renderedby the Dyller Law Firm and $19,490.79.

Other:

This action was (check one):

tried by a jury with Judge Caputo presiding,and the jury has rendered a verdict.

tried by Judge _________ without a jury and theabove decision was reached.

decided by Judge ________________ on a motionfor _____________________________________________________________________________________________.

Date: 09/26/16 CLERK OF COURT

/s/ Judith A. Malave, Deputy Clerk

Signature of Clerk or Deputy Clerk

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APPENDIX C

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

ANGELA BORRELL,

Plaintiff,

v.

BLOOMSBURG UNI-VERSITY, GEISINGERMEDICAL CENTER, andARTHUR F. RICHER andMICHELLE FICCA intheir individual and offi-cial capacities,

Defendants.

CIVIL ACTION NO.3:12-CV-2123

(JUDGE CAPUTO)

ORDER

NOW, this 19th day of September, 2016, in ac-cordance with the accompanying memorandum, ITIS HEREBY ORDERED that:

(1) Defendant Dr. Michelle Ficca’s (“Dr.Ficca”) Post Trial Motions (Doc. 255) areGRANTED IN PART AND DENIEDIN PART;

(A) Dr. Ficca’s motion for remittituris GRANTED. The Plaintiffshall REMIT $165,000 of thecompensatory damage award.Should the Plaintiff refuse to ac-cept $ 250,000 in compensatory

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damages, a new trial on the issueof compensatory damages shallbe conducted.

(B) Dr. Ficca’s motion is DENIED inall other respects.

(2) Defendants Geisinger Medical Center(“GMC”) and Arthur Richer’s (“Mr.Richer”) (collectively “Geisinger De-fendants”) Motion for Judgment as aMatter of Law or New Trial or Remit-titur (Doc. 257) is GRANTED INPART AND DENIED IN PART;

(A) The Geisinger Defendants’ mo-tion for remittitur of the compen-satory damages award isGRANTED. The Plaintiff shallREMIT $165,000 of the compen-satory damage award. Shouldthe Plaintiff refuse to accept$ 250,000 in compensatory dam-ages, a new trial on the issue ofcompensatory damages shall beconducted.

(B) The Geisinger Defendants’ mo-tion for remittitur of the punitivedamages award is GRANTED.The Plaintiff shall REMIT$365,000 of the punitive damageaward. Should the Plaintiff re-fuse to accept $750,000 in puni-tive damages, a new trial on theissue of punitive damages shallbe conducted.

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(C) The Geisinger Defendants’ mo-tion is DENIED in all other re-spects,

(3) Plaintiff’s Motion for Costs and Attor-neys’ Fees (Doc. 245) is GRANTED INPART in the amount of $485,212.79.Plaintiff is awarded $465,722 in fees forservices rendered by the Dyller LawFirm, and $19,490.79 in costs.

(4) Plaintiff’s Motion for Leave to File aSupplemental Declaration and ExhibitsConcerning Plaintiff’s Motion for AnAward of Costs and Attorneys’ Fees(Doc. 296) is DENIED.

/s/ A. Richard CaputoA. Richard CaputoUnited States DistrictJudge

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APPENDIX D

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

ANGELA BORRELL,

Plaintiff,

v.

BLOOMSBURG UNI-VERSITY, GEISINGERMEDICAL CENTER, andARTHUR F. RICHER andMICHELLE FICCA intheir individual and offi-cial capacities,

Defendants.

CIVIL ACTION NO.3:12-CV-2123

(JUDGE CAPUTO)

MEMORANDUM

Presently before the Court are three motions:Plaintiff Angela Borrell’s (“Borrell”) Motion for Par-tial Summary Judgment, (Doc. 86); DefendantMichelle Ficca’s (“Dr. Ficca”) Motion for SummaryJudgment, (Doc. 114); and Defendants GeisingerMedical Center (“Geisinger”) and Arthur Richer’s(“Richer”) Motion for Summary Judgment, (Doc.116).1 Borrell was dismissed as a student fromBloomsburg University (“Bloomsburg”) and Geising-er’s collaborative Nurse Anesthesia Program (the“NAP”) in September 2012 after she refused to sub-

1 Where appropriate, Dr. Ficca, Richer, and Geisinger will be re-ferred to collectively as “Defendants.”

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mit to a drug test. Shortly thereafter, Borrell com-menced this action asserting, among others claims,deprivation of her equal protection and due processrights. With discovery now complete, Borrell seekssummary judgment as to liability on her proceduraldue process liberty and property interest claims,while Defendants move for summary judgment on allclaims.

Because Borrell fails to present any evidencethat she was treated differently from an individualthat was “alike in all relevant aspects,” Defendantswill be granted summary judgment on the “class ofone” equal protection claim. Furthermore, since De-fendants did not make public any false statements inrelation to Borrell’s dismissal from the NAP, De-fendants’ motion for summary judgment on the dueprocess liberty interest claim will be granted. Con-versely, because Defendants deprived Borrell of aproperty interest while acting under color of statelaw when they dismissed her from the NAP withoutdue process, her motion for summary judgment as toliability on the procedural due process deprivation ofproperty interest claim will be granted.

I. Factual Background

A. The Nurse Anesthesia Program

In 2006, Richer was instructed by Geisinger’s2

Executive Leadership Team to explore options withuniversities in order to create a joint or collaborativeaccreditation program. (Doc. 115, Defendants’ State-ment of Material Facts, “Defs.’ SMF,” ¶ 1; Doc.139, Plaintiff’s Counterstatement of Facts, “Plf.’s

2 Geisinger is a legal entity owned by the Geisinger Health Sys-tem. (Defs.’ SMF, ¶ 36; Plf.’s CSF, ¶ 36.)

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CSF,” ¶ 1.) The following year, Geisinger decided toform a collaborative program, known as the NurseAnesthesia Program (the “NAP”), with Bloomsburg,an educational institution of the System of HigherEducation of the Commonwealth of Pennsylvaniathat provides a Masters of Science degree accreditedby the Commission of Collegiate Nursing Educationin the area of nursing for graduates of accreditedprograms. (Defs.’ SMF, ¶¶ 2-3; Plf.’s CSF, ¶¶ 2-3.)The NAP was designed to be distinct fromGeisinger’s previous programs for registered nurses.(Defs.’ SMF, ¶ 4; Plf.’s CSF, ¶ 4.) Under the NAP,students in the program are given the opportunity toperform hands-on work at Geisinger under the su-pervision of Certified Registered Nurse Anesthetists.(Defs.’ SMF, ¶ 5; Plf.’s CSF, ¶ 5.)

In August 2007, Geisinger and Bloomburg en-tered into the “Collaboration Agreement for NurseAnesthesia Education” (the “Agreement”). (Plf.’s Ex.10.) As set forth in the Agreement, Bloomsburg“wishes to collaborate with Geisinger to support theAcademic Training portion of the Program and pro-vide the Program educational expertise and facili-ties,” and Geisinger “wishes to collaborate with Uni-versity to support the Clinical Training portion of theProgram and provide the Program clinical expertiseand facilities.” (Id.) The Agreement provides that“none of the provisions of this Agreement are intend-ed to create nor shall be deemed or construed to cre-ate any relationship between the parties other thanthat of independent entities contracting with eachother solely for the purpose of effecting the provi-sions of this Agreement.” (Id. at ¶ 9.7.)

The parties’ duties and responsibilities are enu-merated in the Agreement. For example, students

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that complete the Clinical Training portion of theNAP receive a Certificate of Completion fromGeisinger, while Bloomsburg provides a MS Degreein Nursing to students that successfully complete theprogram. (Id. at ¶ 2.1) Both parties were also re-quired to assist with meeting the necessary criteriafor accreditation standards. (Id. at ¶ 2.2.) TheAgreement further provides that “[b]oth partiesshall:” (1) “develop a joint Admissions Committee tofinalize admission criteria and recommend admissionof Students into the Program;” (2) “designate at leastthree (3) representatives to serve on an advisorycouncil for the program;” (3) “establish and mutuallyagree upon the number of Students that will be al-lowed to participate in the Program for each class;”(4) “develop and approve the curricula for Studentswhile they are participating in the Clinical Trainingat Geisinger;” and (5) “develop guidelines for theClinical Training portion of the Program with incor-poration into University’s Department of NursingGraduate Student Handbook and based on Universi-ty academic policies.” (Id. at ¶ 2.2.) The Agreementalso requires both parties to promote and market theNAP. (Id. at ¶ 2.6.) Bloomsburg further agreed to“advise Students that Students w ill, while partici-pating in the Clinical Training portion of the Pro-gram, be expected to adhere to all applicable policiesand standards of Geisinger,” including Geisinger’sDrug and Alcohol Policy. (Id. at ¶ 2.8.) And,“[s]ubject to the terms of this Agreement, Geisingershall have sole authority and control over all aspectsof Clinical Training provided to Students pursuant tothis Agreement including, without limitation, desig-nation of patients and facilities.” (Id. at ¶ 2.4.) Simi-larly, the Agreement provides that Geisinger mayexclude a Student from participation in the Clinical

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Training if “(i) the Student’s performance is unsatis-factory to Geisinger; (ii) the Student fails to complywith applicable policies and standards of Geisinger;or (iii) the Student’s health status may prevent at-tendance and successful completion of the ClinicalTraining portion of the Program. Geisinger will noti-fy University in the event a student is excluded.” (Id.at ¶ 8.2.)

As to compensation, Bloomsburg is required topay Geisinger “at the beginning of each semester, atthe rate of 50% of the billed tuition and related fees.”(Id. at ¶ 5.1.) Bloomsburg is also obligated to hire“the Program Director as a full-time tenure trackgraduate faculty member of the Department of Nurs-ing.” (Id.) “Program Director” is defined as:

the individual interviewed, approved andemployed by both University and Geisingerto oversee the Program and serve as the liai-son between Geisinger and University rela-tive to the Program. As an employee of bothGeisinger and University, Program Directorshall be entitled to any benefits or entitle-ments associated with such employment witheach party in accordance with each party’spolicies. . . .

(Id. at ¶ 1.4.)

The Agreement provides that the NAP is approx-imately thirty-three (33) months in duration. (Id. at¶ 2.2.) Approximately twenty-three (23) to twenty-five (25) months are dedicated to the Clinical Train-ing portion of the program. (Id.) During the ClinicalTraining portion of the NAP, the students work withand under the supervision of Geisinger employees.(Defs.’ SMF, ¶ 41; Plfs. CSF, ¶ 41.) Geisinger owns

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the buildings in which it operates. (Defs.’ SMF, ¶ 37;Plfs. CSF, ¶ 37.)

Geisinger and Bloomsburg have joint employees.(Doc. 88, Plaintiff’s Statement of Material Facts,“Plf.’s SMF,” ¶¶ 10-11; Doc. 132, Defendants’ Coun-terstatement of Facts, “Defs.’ CSF,” ¶¶ 10-11.) De-fendant Richer worked as the Interim Program Di-rector from 2008 until 2010 solely as a Geisinger em-ployee. (Defs.’ SMF, ¶ 23; Plfs. CSF, ¶ 23.) In 2010,once students arrived to begin the clinical training inthe NAP, Richer became a joint employee of Blooms-burg and Geisinger. (Richer Dep., 375:10-13; Plf.’sEx. 11.) Richer was the Director of the NAP at thattime. (Plf.’s SMF, ¶ 10; Defs.’ CSF, ¶ 10.) Richer’spay did not change after he became a joint employeeof Bloomsburg and Geisinger, as he continued to re-ceive a yearly salary of $190,000.00. (Defs.’ SMF, ¶26; Plfs. CSF, ¶ 26.) However, Bloomsburg beganpaying approximately twenty-five percent (25%) ofRicher’s salary, in the annual amount of $45,225.97.(Defs.’ SMF, ¶ 27; Plfs. CSF, ¶ 27.) Prior to becominga joint employee of Bloomsburg and Geisinger, Rich-er worked exclusively for Geisinger. (Defs.’ SMF, ¶28; Plfs. CSF, ¶ 28.)

Other joint Bloomsburg-Geisinger employeeswere Brenda Wands (“Dr. Wands”) and DebraMinzola (“Minzola”). (Plf.’s SMF, ¶ 11; Defs.’ CSF, ¶11.) Dr. Wands was the assistant Program Director,(Dr. Wands Dep., 16:1-6, 17:3-8), and Minzola is nowthe assistant Program Director. (Minzola Dep., 11:4-7.)

The NAP makes up only a small percentage ofGeisinger’s annual budget. (Defs.’ SMF, ¶ 53; Plfs.CSF, ¶ 53.) For example, in 2012, Geisinger’s overallbudget was $65,485,379, while its annual investment

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in the NAP is approximately $870,979. (Defs.’ SMF,¶¶ 54-55; Plfs. CSF, ¶ 54-55.) And, while Geisingerindicates that its net loss on its investment in theNAP is approximately $749,979 per year, (Defs.’SMF, ¶ 56), Geisinger leadership desired to developthe NAP “as a source of recruitment for future nurseanesthetists to staff the Geisinger entities.” (RicherDep., 56:16-19.)

B. Bloomsburg and Geisinger Policies andProcedures

Bloomsburg’s Department of Nursing prepared aGraduate Student Handbook for its students seekinga Master of Science in Nursing. (Plf.’s Ex. 16.) Specif-ically, the Departmental Code of Academic and Pro-fessional Conduct indicates that it applies “to allstudent activities on University owned property, anylocation affiliated with Bloomsburg University, or inthe community at large.” (Id. at 67.) Under the Alco-hol and Substance Abuse Policy, students are re-quired to “comply with the drug and alcohol policiesand drug testing procedures as required by agenciesaffiliated with the Department of Nursing.” (Id. at70.) The Alcohol and Substance Abuse Policy furtherstates: “[d]epartmental sanctions will be rendered fora student in the nursing program who . . . refuses tocomply with affiliated agencies drug and alcohol poli-cies and drug screening policies and procedures.”(Id.) The Handbook also sets forth a “review process”which is to “be initiated for a student in the nursingprogram who has a suspected violation of university,department, clinical agency alcohol/substance useand abuse policies . . . .” (Id.)

Section V of the Geisinger Health System/Bloomsburg University of Pennsylvania Nurse Anes-thesia Program Administrative Manual is entitled

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the “Student Nurse Anesthetist Handbook.” (Doc. 82,122.) The purpose of the Student Nurse AnesthetistHandbook is to provide a “guide for students intend-ed to promote student understanding of the [NAP]-Related policies, procedures and academic/clinical is-sues.” (Id. at 123.) Among the various policies andprocedures set forth in the Nurse Anesthesia Pro-gram Administrative Manual is the “Grievance Pro-cedure,” which defines a grievance as “a complaint bya student concerning the clinical experiences, di-dactic evaluation, and/or disciplinary action duringthe Student’s period of enrollment in the ClinicalCore Course portion of the Program.” (Id. at 194.)The Administrative Manual also contains a “Code ofConduct/Discipline” policy, which provides that theNAP and Geisinger have established rules and regu-lations, and that “in the event there is a violation ofone of these rules, we are committed to being rea-sonable in an attempt to correct the offense.” (Id. at196.) Under the Code of Conduct/Discipline policy,the “Faculty Organization” is the agency responsiblefor the discipline of students, except in minor in-stances. (Id.) This policy further enumerates offenseswhich are cause for immediate suspension and/or ex-pulsion, one of which is the “unauthorized use, pos-session or distribution of controlled substances.” (Id.)The policy provides that it is “the student’s right toinitiate a grievance in the event that there is a disa-greement with the decision of the Faculty Organiza-tion. Please refer to the Grievance Policy.” (Id.)

Geisinger also has a Drug and Alcohol Policy forpurposes of outlining “Geisinger Health Systemstandards and procedures for dealing with Alcoholand Drug use or abuse by employees, . . .” (Plf.’s Ex.13, 1.) Students are considered to be “GeisingerHealth System Employee[s]” under the Drug and Al-

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cohol Policy. (Id. at 2.) The Drug and Alcohol Policyprovides that no Geisinger Health System Employees“may use, possess, transport, promote or sell Alcohol,or any Drug or Drug Paraphernalia while performingwork for Geisinger . . ., while on Geisinger HealthSystem Premises, . . .” (Id. at 5.) Furthermore,Geisinger Health System Employees are prohibitedfrom reporting to work or remaining on duty whileunder the influence of or impaired by alcohol or anydrug. (Id.) Geisinger Health System Employees areobligated under the Drug and Alcohol Policy to com-ply with substance abuse testing procedures. Thoseprocedures provide that “[s]uch tests may be admin-istered upon reasonable suspicion of substanceabuse, (this may include situations on a case by casebasis where HR is made aware of allegeddrug/alcohol abuse and deems it as reasonable causeto test the employee) . . . .” (Id. at 6.). And, “[a]nyGeisinger Health System Employee who refuses tocooperate in any aspect of the Drug and/or Alcoholtesting process described in this Policy shall be sub-ject to disciplinary action, including termination, fora first refusal or any subsequent refusal.” (Id. at 4.)

C. Borrell’s Enrollment, Participation, andTermination from the NAP

Borrell applied for entrance into the NAP for theclass beginning Fall 2011. (Plf.’s Ex. 74.) Borrell wasaccepted into the NAP by letter dated December 10,2010. (Id.) The acceptance letter was signed by Dr.Ficca as Graduate Coordinator and Assistant Chair-person3 and Richer as Interim Program Director on

3 Since 2011, Dr. Ficca has been the Chairperson of the De-partment of Nursing at Bloomsburg. (Defs.’ SMF, ¶ 29; Plf.’sCSF, ¶ 29.)

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joint Bloomsburg-Geisinger letterhead. (Id.) The onlyprogram within Bloomsburg that Borrell applied forand was accepted by was the NAP. (Plf.’s Ex. 75, ¶ 7.)Borrell ultimately started in the NAP in 2011,(Borrell Dep., 43:13), and her clinical course workbegan at Geisinger in May 2012. (Id. at 59:8-10.)While a student in the NAP, Borrell paid her tuition,maintained her GPA at approximately 3.63-3.69, andperformed her clinical work appropriately. (Plf.’sSMF, ¶ 15; Defs.’ CSF, ¶ 15.)

Shortly after Borrell’s class (the class of 2014)began their clinical work, Dr. Wands noticed thatBorrell would show up to class looking disheveled,tired, and moody. (Dr. Wands Decl., ¶ 6.) However,Dr. Wands never documented her observations. (Dr.Wands Dep., 83:8-22.) Richer also noticed thatBorrell appeared disheveled on a few occasions, but,like Dr. Wands, he never documented these observa-tions. (Richer Dep., 103:1-23.)

On the evening of September 20, 2012, MonicaMasemer (“Masemer”), a student in the class of 2013,alerted Dr. Wands that a student would be comingforward about one of the registered nurses in theclass of 2014. (Defs.’ SMF, ¶ 67; Plfs. CSF, ¶ 67.)Masemer knew through Justin Young (“Young”), alsoa student in the class of 2013, that either LindseyReilly (“Reilly”) or Young would come forward re-garding Borrell having a potential drug problem.(Defs.’ SMF, ¶ 68; Plfs. CSF, ¶ 68.) Reilly had previ-ously spoken with Young, her mentor, about her con-cern that Borrell was having issues with drug use.(Defs.’ SMF, ¶ 69; Plfs. CSF, ¶ 69.) Young spoke ofthat conversation with Masemer, who then commu-nicated with Dr. Wands. (Defs.’ SMF, ¶ 71; Plfs. CSF,¶ 71.)

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The next day, Friday, September 21, 2012, Reillymet with Dr. Wands. (Defs.’ SMF, ¶ 72; Plfs. CSF, ¶72.) Reilly informed Dr. Wands that she witnessedBorrell use cocaine once in July 2012. (Reilly Dep.,9:12-18, 47:13-14.) Reilly also informed Dr. Wandsthat Borrell acted erratically the previous weekendwhen they were in New York City. (Id. at 46:22-47:17.) According to Borrell, Reilly reported this sto-ry because the two had gotten into an argumentwhile they were in New York City. (Borrell Dep.,156:17-24.)

The same day, Dr. Wands reported what shelearned from Reilly to Dr. Ficca and Richer. (Dr.Wands Decl., ¶ 18.) Dr. Wands spoke with Dr. Ficcaand Richer at Bloomsburg while the three were pre-paring to start the interview process for the nextclass of anesthesia students. (Dr. Ficca Dep., 50:7-51:11.) Dr. Wands stated that she had contact withstudents who reported to her that they had wit-nessed Borrell using cocaine and that she acted in-appropriately on a weekend trip to New York. (Id. at51:13-18.)

On Monday, September 24, 2012, Borrell report-ed as usual to her clinical assignment at Geisinger at6:00 a.m. (Plf.’s SMF, ¶ 44; Defs.’ CSF, ¶ 44.) Underthe supervision of a certified registered nurse anes-thetist, Borrell performed work, including adminis-tering anesthesia, on a patient or patients for threeto five hours. (Id.)

Also that morning, Dr. Wands, Richer, and Dr.Ficca met with Susan Hallick (“Hallick”), Geisinger’sExecutive Vice President, System Chief Nursing Of-ficer, to discuss Reilly’s report of Borrell’s use of co-caine. (Defs.’ SMF, ¶ 77; Plfs. CSF, ¶ 77.) Hallick is“responsible for ensuring that any matters of signifi-

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cance occurring in the NAP are handled consistentlywith GMC and Geisinger Health System’s overallpolicies, procedures, and practices.” (Hallick Decl., ¶7.) The meeting took place in Hallick’s office whichwas located at Geisinger. (Ficca Dep., 61:6-9.) At thatmeeting, it was decided that Richer should contactBrion Lieberman (“Lieberman”), Geisinger’s Directorof Human Resources, (Lieberman Dep., 5:8), for fur-ther guidance. (Ficca Dep., 63:18-19.) It was also de-cided at that meeting that Borrell needed to be takenout of the clinical area and drug tested. (Richer Dep.,90:17-19.) Richer then met with Lieberman and Dr.Wands in his office at Geisinger to discuss the alle-gation that a student had witnessed Borrell using co-caine. (Lieberman Dep., 41:1-19.)

Thereafter, Richer asked Minzola to get Borrellout of clinical and bring her to his office. (MinzolaDep., 19:25-20:12.) Borrell was instructed to changeout of her scrubs and bring her personal effects.(Richer Dep., 116:20-22.)

Beginning at 11:15 a.m., Richer and Liebermanmet with Borrell for approximately one hour in Rich-er’s office. (Defs.’ SMF, ¶ 81; Plfs. CSF, ¶ 81.) Richerindicated to Borrell that there were concerns aboutchanges in her appearance and demeanor, as well assuspicions of drug use, and that they wanted her totake a drug test. (Richer Dep., 117:6-18.) Richer andLieberman, however, did not inform Borrell that theyhad a report that she had been witnessed using co-caine. (Plf.’s SMF, ¶ 54; Defs.’ CSF, ¶ 54.) Accordingto Richer, Borrell became verbal, “saying a bunch ofthings,” and asking for an explanation as to whatwas meant by her appearance and demeanor chang-ing. (Richer Dep., 117:16-118:22.) Borrell stated thatshe believed she was being discriminated against

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and that she had been under a lot of stress. (Id. at118:9-22.) And, when Richer explained that theywanted her to take a drug test, Borrell indicated thatshe did not know if she was willing to submit to one.(Id. at 118:23-25.) Borrell was then permitted to callher mother at her request. (Id. at 119:8-14.)

Borrell stated that she was refusing to take thedrug test because she did not want her record toshow that she submitted to a drug/urine screen.(Defs.’ SMF, ¶ 91; Plfs. CSF, ¶ 91.) AlthoughLieberman told Borrell that the results would bekept confidential, she did not believe him. (Defs.’SMF, ¶ 92; Plfs. CSF, ¶ 92.) Borrell was adamantthat she would not submit to a drug test that day,but she expressed to Richer and Lieberman that shemight be willing to submit to the drug test anotherday after she had time to think about it. (Defs.’ SMF,¶ 93; Plfs. CSF, ¶ 93.) Lieberman informed Borrellthat testing at a later date was not an option,(Lieberman Dep., 88:14-18.) And, while Richer main-tains that Borrell was made aware that refusal totake a drug test could result in “consequence[s], up toand including termination from the program,” (Rich-er Dep., 121:10-14), Borrell denies that he ever indi-cated that she could be terminated at that meeting.(Borrell Dep., 172:8-10.) Rather, Borrell testified thatshe was only told that she would “face consequences”if she did not submit to the drug test. (Borrell Dep.,192:11-15.) Ultimately, Borrell refused to take thedrug test. (Defs.’ SMF, ¶ 95; Plfs. CSF, ¶ 95.) Follow-ing the meeting, Borrell contacted multiple class-mates and her sister to tell them about the meetingand that she refused to take a drug test. (Defs.’ SMF,¶¶ 107-108; Plfs. CSF, ¶¶ 107-108.) Borrell also con-tacted Dr. Robert Marande (“Dr. Marande”), theDean of the College of Science and Technology at

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Bloomburg, about the request to take a drug test andher refusal. (Defs.’ SMF, ¶ 109; Plfs. CSF, ¶ 109.)

That evening, a draft letter to Borrell was sentby email from Lieberman to Richer indicating thatshe was not to “report back to the program until fur-ther notice,” and that she would be contacted in thenear future to discuss the next steps. (Plf.’s Ex. 41.)However, Richer testified that by the end of businesson Monday, September 24, 2012, it was decided thatBorrell would be terminated from the program.(Richer Dep., 161:13-21.)

The next day, Tuesday, September 25, 2012, adraft letter informing Borrell of her termination fromthe NAP was circulated by email between Lieber-man, Dr. Ficca, Richer, Dr. Wands, Minzola, andBrenda Webb. (Plf.’s Ex. 41.) Lieberman, Dr. Ficca,Richer, and Dr. Wands all provided comments andsuggestions as to the contents of the letter. (Id.)Richer subsequently sent an email to Ficca andLieberman entitled “Final copy . . . font reduced sothat the letter fits on GHS/BUP stationary.” (Id.)

By letter dated September 25, 2012, Borrell wasinformed of her termination from the NAP. (Plf.’s Ex.23.) The letter is on joint Bloomsburg University-Geisinger letterhead. (Id.) The letter is signed byRicher as Director of the NAP, and he indicates inthe letter that Borrell had been informed that she“would be required to cooperate with a drug test as acondition of the Nurse Anesthesia Program.” (Id.)The letter further states: “[a]s a result of your refusalto comply with the drug test, you are terminatedfrom the Nurse Anesthesia Program effective Sep-tember 25, 2012.” (Id.) The letter is also signed byDr. Ficca, indicating that she “reviewed the above in-formation and agree[d] with the decision to termi-

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nate Angela Borrell from the Nurse Anesthesia Pro-gram.” (Id.) Noted on the letter as enclosures areboth the Bloomsburg University Department ofNursing Student Handbook pages 67 and 70-74, i.e.,the Departmental Code of Academic and ProfessionalConduct, as well as the Geisinger Drug and AlcoholPolicy. (Id.)

Borrell attempted to contact Richer and others atboth Geisinger and Bloomsburg on September 25,2012 to state her willingness to submit to a drug test.(Plf.’s SMF, ¶ 63; Defs.’ CSF, ¶ 63; Plf.’s Ex. 25.) Inparticular, Borrell, at the instruction of the Dean atBloomsburg, emailed Richer indicating her willing-ness to comply with the drug test request. (Plf.’s Ex.25.) Richer forwarded that email, stating that ifBorrell “grieves her dismissal, I believe we are goingto be forced to share other information regarding herwitnessed use of cocaine.” (Plf.’s Ex. 41.) Liebermanresponded by noting that “we will need to provide theinformation that was available to us to a reviewboard if she grieves.” (Id.) Despite Borrell’s request,however, she was not permitted to take a drug test atthat point. (Plf.’s SMF, ¶ 64; Defs.’ CSF, ¶ 64.)

The next morning, Wednesday, September 26,2012, Richer sent Hallick an email to update her onwhat had developed over the previous twenty-fourhours. (Plf.’s Ex. 27.) Richer informed Hallick that hehad meetings with Dr. Marande, Dr. Ficca, andLieberman. (Id.) Dr. Ficca had explained the situa-tion to Dr. Marande, and Dr. Marande supported thedecision to terminate Borrell from the program. (Id.)Richer also informed Hallick that Borrell contactedBob Gates, Dean of Graduate Studies, and statedthat “she wanted to file ‘a nonacademic grievance,’ aprocess which does not exist.” (Id.) Richer further in-

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dicated to Hallick that Borrell’s access identificationbadge had been suspended and that they would takefurther steps once she received her termination let-ter. (Id.)

On September 27, 2012, Borrell sent Dr. Ficca anemail indicating that she wished to appeal her ter-mination from the NAP and requesting the reviewprocess take place and a review panel hearing. (Plf.’sEx. 30A.) Borrell stated in her letter that she wasnever informed by Lieberman or Richer that shewould be terminated from the program. (Id.) She alsoindicated that she attempted to contact Richer themorning after she refused to submit to a drug test,but she did not receive a response. (Id.) Thus, sheconcluded by “asking for a formal meeting and a for-mal review process of this decision.” (Id.)

Borrell also contacted a few of her classmatesand informed them she was terminated from theNAP. (Defs.’ SMF, ¶ 114; Plfs. CSF, ¶ 114.) In addi-tion, Borrell contacted Dr. Marande about her dis-missal from the NAP. (Defs.’ SMF, ¶ 115; Plfs. CSF,¶ 115.) Dr. Marande instructed Borrell that if shewanted to get the issue resolved, she should contactGeisinger’s Human Resources Department. (Defs.’SMF, ¶ 116; Plfs. CSF, ¶ 116.) Dr. Marande in-formed Borrell about other graduate options thatwere available to her because she could not completethe clinical requirement of the NAP. (Defs.’ SMF, ¶117; Plfs. CSF, ¶ 117.) Borrell did not want to hearabout those options. (Dr. Marande Dep., 33:12-15.)However, for Borrell to have pursued one of theseother graduate options, she would have needed toapply for that specific program, such as the nursepractitioner program or the community health pro-gram. (Dr. Ficca Dep., 89:29-90:4.)

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On Monday, October 1, 2012, Richer sent anemail to Lieberman to inform him that Borrell decid-ed to grieve her termination. (Plf.’s Ex. 28.) Richerindicated that he had a meeting scheduled with Dr.Ficca, and, also, that Dr. Ficca had spoken to theGraduate School Dean and as far as he was con-cerned, her termination was a “‘non-academic griev-ance’ of which they do not have a process to deal with. . . .” (Id.)

On October 2, 2012, Richer emailed Hallick andLieberman, informing them that “Bloomsburg Uni-versity has determined that the student’s termina-tion cannot be grieved since it is a ‘non-academic’grievance,” and that “the contract between Geisingerand Bloomsburg indicated that the university abidesby or agrees to support Geisinger’s drug and alcoholpolicy,” and the decision to refuse a drug test was inviolation of that policy. (Plf.’s Ex. 29.) By letter datedOctober 3, 2012 to Richer and Dr. Ficca, Borrell’sformer counsel demanded an immediate review pro-cess/hearing and reinstatement to the NAP. (Plf.’sEx. 31.)

On October 4, 2012, Dr. Ficca sent an email toLieberman and Richer attaching a draft letter re-sponding to Borrell’s letter sent on September 27,2012. (Plf.’s Ex. 32.) The draft letter stated that be-cause Borrell refused to submit to the drug test, shewas “no longer eligible to complete your clinical ex-periences at Geisinger and, thus, you are unable tocomplete the requirements of the nurse anesthesiaoptions of the MSN.” (Id.) The draft letter furtherprovided that as part of the Department of Nursing’saffiliation agreements with health care institutions,students are required to comply with the policies ofthe affiliated institutions. (Id.) And, the draft letter

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indicated: “[t]his situation is a non-academic issueand does not qualify for the grievance procedure atBloomsburg University.” (Id.)

Dr. Ficca responded to Borrell by letter dated Oc-tober 19, 2012. (Plf.’s Ex. 19.) That letter, on Blooms-burg University letterhead, states:

Dear Ms. Borrell:

As part of the Department of Nursing’s affili-ation agreements with health care institu-tions, students and faculty are required toabide by policies and procedures of the affili-ating institutions. Because you refused toparticipate in a drug screening test when re-quired on September 24, 2012, you violatedthe contractual relationship we have withGeisinger Medical Center and as a result,you cannot provide patient care at GeisingerMedical Center as a student in the nurse an-esthesia option of the MSN program. Thissituation is a non-academic issue.

(Id.)

On November 8, 2012, Richer sent an email tothe NCBRNA (the National Board of Certificationand Recertification for Nurse Anesthetists). (Plf.’sEx. 33.) The email signature block identifies Richeras “Program Director, Geisinger Health Sys-tem/Bloomsburg University of PA Nurse AnesthesiaProgram.” (Id.) Attached to that email was a com-pleted 2012 Change of Student Status Form forBorrell. (Id.) That form identifies Borrell’s date oftermination, and provides the following explanationfor termination: “[s]tudent terminated for failure tocomply with a request to submit to a drug test.” (Id.)Also attached to the Change of Student Status Form

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was a copy of the September 25, 2012 letter toBorrell informing her that she was dismissed fromthe NAP. (Id.)

D. Procedural History

Based on the foregoing events, Borrell com-menced this action against Dr. Ficca, Bloomsburg,Richer, and Geisinger by filing a Complaint and Mo-tion for Preliminary Injunction and Temporary Re-straining Order on October 24, 2012. (Docs. 1; 2.) Af-ter multiple requests to continue the preliminary in-junction hearing were granted, (Docs. 10; 13; 15),Borrell voluntarily dismissed the request for prelim-inary injunctive relief. (Docs. 16; 18.)

On February 19, 2013, Borrell, through newly re-tained counsel, filed her Amended Complaint. (Doc.21.) The Amended Complaint set forth claims for vio-lations of Borrell’s due process and equal protectionrights, as well as state law breach of contract claims.(Id.) Dr. Ficca, Bloomsburg, Richer, and Geisingermoved to dismiss the Amended Complaint. (Docs. 29;32.)

By Memorandum and Order dated June 28,2013, the motions to dismiss were granted in partand denied in part. See Borrell v. Bloomsburg Univ.,955 F. Supp. 2d 390 (M.D. Pa. 2013). The claimsagainst Bloomsburg, Dr. Ficca in her official capaci-ty, and Richer in his official capacity as an employeeof Bloomsburg were dismissed with prejudice onEleventh Amendment grounds. See id. at 399-400.The breach of contract claims against Dr. Ficca,Richer, and Geisinger were also dismissed with prej-udice for failure to state a claim upon which reliefcould be granted. See id. at 407-09. Borrell was per-mitted, however, to proceed with her due process and

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equal protection claims against Geisinger, Dr. Ficcain her individual capacity, and Richer in his individ-ual capacity. See id. at 410.

The action proceeded to discovery, and followingthe close of discovery, the parties filed the instantmotions for summary judgment. Borrell seeks partialsummary judgment as to liability on her proceduraldue process claims in Count I of the Amended Com-plaint. (Doc. 86.) Conversely, Richer and Geisingerseek summary judgment on both the due processclaims in Count I and the equal protection claim inCount II of the Amended Complaint. (Doc. 116.) Dr.Ficca likewise requests summary judgment in herfavor on both Counts I and II of the Amended Com-plaint. (Doc. 114.) The parties’ motions for summaryjudgment have been fully briefed and are ripe fordisposition.

II. Legal Standard

Summary judgment shall be granted “if the mo-vant shows that there is no genuine dispute as to anymaterial fact and the movant is entitled to judgmentas a matter of law.” Fed. R. Civ. P. 56(a). “Summaryjudgment is appropriate when ‘the pleadings, deposi-tions, answers to interrogatories, and admissions onfile, together with the affidavits, if any, show thatthere is no genuine issue as to any material fact andthat the moving party is entitled to a judgment as amatter of law.’” Wright v. Corning, 679 F.3d 101, 103(3d Cir. 2012) (quoting Orsatti v. N.J. State Police, 71F.3d 480, 482 (3d Cir. 1995)). A fact is material ifproof of its existence or nonexistence might affect theoutcome of the suit under the applicable substantivelaw. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).

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Where there is no material fact in dispute, themoving party need only establish that it is entitled tojudgment as a matter of law. See Edelman v. Comm’rof Soc. Sec., 83 F.3d 68, 70 (3d Cir. 1996). Where,however, there is a disputed issue of material fact,summary judgment is appropriate only if the factualdispute is not a genuine one. Anderson, 477 U.S. at248, 106 S. Ct. 2505. An issue of material fact is gen-uine if “a reasonable jury could return a verdict forthe nonmoving party.” Id. Where there is a materialfact in dispute, the moving party has the initial bur-den of proving that: (1) there is no genuine issue ofmaterial fact; and (2) the moving party is entitled tojudgment as a matter of law. See Howard Hess DenalLabs., Inc. v. Dentsply Int’l, Inc., 602 F.3d 237, 251(3d Cir. 2010). The moving party may present itsown evidence or, where the non-moving party hasthe burden of proof, simply point out to the courtthat “the non-moving party has failed to make a suf-ficient showing on an essential element of her case.”Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct.2548, 91 L. Ed. 2d 265 (1986).

“When considering whether there exist genuineissues of material fact, the court is required to exam-ine the evidence of record in the light most favorableto the party opposing summary judgment, and re-solve all reasonable inferences in that party’s favor.”Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir. 2007).Once the moving party has satisfied its initial bur-den, the burden shifts to the non-moving party to ei-ther present affirmative evidence supporting its ver-sion of the material facts or to refute the moving par-ty’s contention that the facts entitle it to judgment asa matter of law. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The Court need not accept mere conclusoryallegations, whether they are made in the complaint

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or a sworn statement. Lujan v. Nat’l Wildlife Fed’n,497 U.S. 871, 888, 110 S. Ct. 3177, 111 L. Ed. 2d 695(1990).

“To prevail on a motion for summary judgment,the non-moving party must show specific facts suchthat a reasonable jury could find in that party’s fa-vor, thereby establishing a genuine issue of fact fortrial.” Galli v. New Jersey Meadowlands Comm’n,490 F.3d 265, 270 (3d Cir. 2007) (citing Fed. R. Civ.P. 56(e)). “While the evidence that the non-movingparty presents may be either direct or circumstan-tial, and need not be as great as a preponderance,the evidence must be more than a scintilla.” Id.(quoting Hugh v. Butler County Family YMCA, 418F.3d 265, 267 (3d Cir. 2005)). In deciding a motionfor summary judgment, “the judge’s function is nothimself to weigh the evidence and determine thetruth of the matter but to determine whether there isa genuine issue for trial.” Anderson, 477 U.S. at 249,106 S. Ct. 2505.

Where cross-motions for summary judgment arefiled, as is the case here, the summary judgmentstandard remains the same. Lawrence v. City ofPhila., 527 F.3d 299, 310 (3d Cir. 2008). Of course,when presented with cross motions for summaryjudgment, the Court must consider the motions sepa-rately, see Williams v. Phila. Hous. Auth., 834 F.Supp. 794, 797 (E.D. Pa. 1993), aff’d, 27 F.3d 560 (3dCir. 1994), and view the evidence presented for eachmotion in the light most favorable to the nonmovingparty. See Matsushita Elec. Indus. Co., Ltd. v. ZenithRadio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L.Ed. 2d 538 (1986).

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III. Discussion

Borrell’s claims against Dr. Ficca, Richer, andGeisinger are brought pursuant to 42 U.S.C. § 1983.Section 1983 provides that “[e]very person who, un-der color of any statute, ordinance, regulation, cus-tom, or usage . . . subjects, or causes to be subjected,any citizen . . . or other person . . . to the deprivationof any rights, privileges, or immunities secured bythe Constitution and laws, shall be liable to the partyinjured, . . .” 42 U.S.C. § 1983. “To establish liabilityunder 42 U.S.C. § 1983, a plaintiff must show thatthe defendants, acting under color of law, violatedthe plaintiff’s federal constitutional or statutoryrights, and thereby caused the complained of injury.”Elmore v. Cleary, 399 F.3d 279, 281 (3d Cir. 2005)(citing Sameric Corp. of Del., Inc. v. City of Phila.,142 F.3d 582, 590 (3d Cir. 1998)). In this case,Borrell asserts procedural due process claims for: (1)deprivation of a property interest in the continuationof her course of study; and (2) deprivation of a libertyinterest in reputation. Borrell also asserts a “class ofone” equal protection claim.

As indicated, all parties move for summaryjudgment on the procedural due process claims,while only Defendants seek summary judgment onthe equal protection claim. In addition, Richer andGeisinger contend as a threshold matter that theyare entitled to summary judgment because they werenot acting under color of state law. I will first ad-dress the color of state law issue. I will then proceedto consider, in the following order, Borrell’s equalprotection claim, her deprivation of liberty interestclaim, and her deprivation of property interest claim.

At the outset, however, I note that while the par-ties’ submissions address in detail the meaning of

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the terms of the policies and procedures in the rec-ord, i.e., the Department of Nursing Graduate Stu-dent Handbook, the Drug and Alcohol Policy, and theNurse Anesthesia Program Administrative Manual,and whether they were followed in this case, thematter before me for resolution is not Defendants’compliance (or lack thereof) with these policies andprocedures. See, e.g., Le v. Univ. of Med. & Dentistryof N.J., 379 F. App’x 171, 175 (3d Cir. 2010) (“Aschool’s failure to follow its own policies is not, in it-self, a violation of due process. . . . So long as the pro-cedural protections actually provided were sufficientand fairly administered, due process is satisfied.”).While the policies and procedures in the record pro-vide relevant background and context underlying thedispute at bar, because the claims here are broughtpursuant to § 1983, at issue is whether Defendants,in terminating Borrell from the NAP, violated herprocedural due process and equal protection rights.

A. Under Color of State Law

To prevail on her § 1983 claims, Borrell mustdemonstrate that she was deprived of a federal con-stitutional or statutory right by an individual actingunder color of state law. See Kach v. Hose, 589 F.3d626, 646 (3d Cir. 2009).4 Richer and Geisinger bothdispute that they acted under color of state law. (Doc.117, 4-13.)

There is no “simple line” between state and pri-vate actors. Brentwood Acad. v. Tenn. Second Sch.Athletic Ass’n, 531 U.S. 288, 295, 121 S. Ct. 924, 148

4 Actions “under color of law” are considered the equivalent of“state action” under the Fourteenth Amendment. Leshko v.Servis, 423 F.3d 337, 339 (3d Cir. 2005).

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L. Ed. 2d 807 (2001). And, “[a]lthough little isstraightforward in determining whether a private ac-tor has acted ‘under color of state law,’ one directiveemerges clearly from the Supreme Court’s jurispru-dence: the facts are crucial.” Crissman v. DoverDowns Entm’t Inc., 289 F.3d 231, 234 (3d Cir. 2001)(en banc); see also Groman v. Twp. of Manalapan, 47F.3d 628, 638 (3d Cir. 1995) (the state actor “inquiryis fact-specific”).

In considering Supreme Court precedent, theThird Circuit has noted that state action cases can bebroadly divided into two factual categories. “The firstcategory involves an activity that is significantly en-couraged by the state or in which the state acts as ajoint participant.” Leshko v. Servis, 423 F.3d 337, 340(3d Cir. 2005) (citations and emphasis omitted). Thesecond category “involves an actor that is controlledby the state, performs a function delegated by thestate, or is entwined with government policies ormanagement.” Id. (citations and emphasis omitted).The Third Circuit has thus articulated “three broadtests” to determine if a private defendant is a stateactor: (1) whether the defendant exercised powersthat are “traditionally the exclusive prerogative ofthe state;” (2) whether the defendant acted “with thehelp of or in concert with state officials;” or (3)whether the “state has so far insinuated itself into aposition of interdependence with the acting partythat it must be recognized as a joint participant inthe challenged activity[.]” Kach v. Hose, 589 F.3d626, 646 (3d Cir. 2009) (citing Mark v. Borough ofHatboro, 51 F.3d 1137, 1142 (3d Cir. 1995)). And, re-gardless of which test applies, “the basic question” iswhether Geisinger and Richer’s conduct “can be fair-ly attributed to the state.” Crissman, 289 F.3d at239.

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To determine whether actions that allegedlycaused the deprivation of a right are fairly attribut-able to the state, the Supreme Court has set forth atwo-part approach:

First, the deprivation must be caused by theexercise of some right or privilege created bythe State or by a rule of conduct imposed bythe state or by a person for whom the State isresponsible. Second, the party charged withthe deprivation must be a person who mayfairly be said to be a state actor.

Lugar v. Edmondson Oil Co., 457 U.S. 922, 936, 102S. Ct. 2744, 73 L. Ed. 2d 482 (1982).

In their brief in opposition to Borrell’s motion forsummary judgment, Richer and Geisinger argue thatBorrell fails to satisfy the first Lugar prong becauseshe was dismissed pursuant to the Drug and AlcoholPolicy, which they characterize as a “private rule ofconduct.” (Doc. 131, 6-7.) However, as explained indetail below, Borrell was deprived of her due processrights by, among others, Richer, a joint Bloomsburg-Geisinger employee, i.e., a person for whom the stateis responsible. See, e.g., Cruz v. Donnelly, 727 F.2d79, 81 (3d Cir. 1984) (finding first Lugar prong satis-fied where the alleged deprivation of constitutionalrights occurred by borough police officers).

Moreover, there is evidence in the record that, forstudents participating in the NAP, Bloomsburgadopted the Drug and Alcohol Policy. Cf. Florer v.Congregation Pidyon Shevuyim, N.A., 639 F.3d 916,923 (9th Cir. 2011) (plaintiff failed to offer evidencethat the private defendants “were enforcing a DOCor governmental policy prohibiting him from consult-ing with a rabbi or possessing a Torah or calendar, or

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that Defendants’ internal policy was adopted by theDOC.”). In the Collaboration Agreement, Bloomsburgagreed to advise students in the NAP that they were“expected to adhere to all applicable policies andstandards of Geisinger,” including the Drug and Al-cohol Policy. (Plf.’s Ex. 10.) Additionally, Blooms-burg’s Department of Nursing Graduate StudentHandbook specifically states: “[s]tudents will complywith the drug and alcohol policies and drug testingprocedures as required by agencies affiliated withthe Department of Nursing.” (Plf.’s Ex. 16, 70.) And,the Department of Nursing Graduate Student Hand-book provides that departmental sanctions will berendered for a student in the nursing program who“refuses to comply with affiliated agencies drug andalcohol policies and drug screening policies and pro-cedures.” (Id.) Borrell therefore satisfies Lugar’s firstprong. As to the second prong, Borrell relies on thejoint action and entwinement tests to establish stateaction.

1. Geisinger acted under color of state law.

The Supreme Court has held that private activitymay be deemed state action when “a private actoroperates as a ‘willful participant in joint activity withthe State or its agents.’” Brentwood Acad., 531 U.S.at 296, 121 S. Ct. 924 (quoting Lugar v. EdmondsonOil Co., 457 U.S. 922, 941, 102 S. Ct. 2744, 73 L. Ed.2d 482 (1982)). And, the Third Circuit has indicatedthat the “joint action test” is an appropriate meansby which to examine a private entity’s contractual re-lationship with the state. See Cahill v. Live Nation,512 F. App’x 227, 230 (3d Cir. 2013) (citing Tsao v.Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir.2012)). “The Supreme Court’s language requiringjoint action or action in concert suggests that some

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sort of common purpose or intent must be shown.”Harvey v. Plains Twp. Police Dep’t, 421 F.3d 185, 195(3d Cir. 2005) (citation omitted). “This requirementcan be satisfied either ‘by proving the existence of aconspiracy or by showing that the private party was‘a willful participant in joint action with the State orits agents.’” Tsao, 698 F.3d at 1140 (quoting Franklinv. Fox, 312 F.3d 423, 445 (9th Cir. 2002)); Harvey,421 F.3d at 195 (joint action requires that “the pri-vate actor at least be a willful participant in joint ac-tivity with the state or its agents.”).5

Under the facts and circumstances of this case,Geisinger acted under color of state law. Here, theNAP was a collaboration between Bloomsburg andGeisinger. (Plf.’s Ex. 10.) As part of this collabora-tion, Bloomsburg provided the academic education,while Geisinger provided the clinical education tostudents in the program. (Id.) For students to finishthe program, both the academic and clinical compo-nents needed to be completed. (Id.)

Bloomsburg and Geisinger jointly participated inoperating the NAP. For example, both parties assist-ed with meeting the accreditation standards for theprogram. The admissions criteria for entrance intothe NAP was developed jointly by Bloomsburg andGeisinger. For each class entering the NAP, Blooms-burg and Geisinger mutually agree as to the size ofthe class. Also indicative of joint activity in this caseis that “[b]oth parties shall develop and approve the

5 Thus, Geisinger is incorrect in asserting that Borrell mustprove a conspiracy to satisfy the “joint action test.” (Doc. 150,15.) As stated in the text, the “joint action test” can be satisfiedby proof of a conspiracy or by demonstrating willful participa-tion in joint activity with the state.

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curricula for Students while they are participating inClinical Training at Geisinger.” (Id. at ¶ 2.2.) Theguidelines for the Clinical Training portion of theprogram were to be developed by both parties andthen incorporated into the Department of NursingGraduate Student Handbook.

Likewise, the parties were both obligated tojointly promote and market the NAP. As part of thisobligation, promotional and marketing material issubject to the review and approval of both parties,and the parties equally share the expenses of thepromotional and marketing materials and services.Bloomsburg and Geisinger also share the tuition andfees due from students in the NAP, and Bloomsburgis obligated to pay Geisinger, at the beginning ofeach semester, at the rate of fifty percent (50%) ofthe billed tuition and related fees. Bloomsburg andGeisinger, in addition, have joint employees, and, atleast with respect to the Program Director, they bothpay a portion of his salary.

In view of this evidence, Geisinger was a willfulparticipant in joint activity, the NAP, with Blooms-burg. And, while the Third Circuit has indicated that“not every partnership or venture with state will re-sult in a finding of state action,” the relationship inthis case suffices to establish action that is “fairly at-tributable to the state.” Crissman, 289 F.3d at 245n.18. As detailed, with respect to the operations ofthe NAP, both Bloomsburg and Geisinger have obli-gations and responsibilities, many of which areshared between the two jointly. In that regard, mul-tiple individuals have been employed jointly byBloomsburg and Geisinger, including Richer, Dr.Wands, and Minzola. Moreover, Bloomsburg andGeisinger mutually benefit from the program.

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Geisinger obtained “a source of recruitment for fu-ture nurse anesthetists to staff the Geisinger enti-ties,” (Richer Dep., 56:16-19), while Bloomsburg ob-tained access to a clinical facility and clinical train-ing to support its academic and educational exper-tise.

Borrell’s termination from the NAP is also fairlyattributable to the state. Borrell was dismissed fromthe collaborative NAP by Richer, an employee of bothBloomsburg and Geisinger. (Plf.’s Ex. 23.) Borrellwas informed of her dismissal from the NAP by letteron joint Bloomsburg-Geisinger stationary. That let-ter reflects Dr. Ficca’s agreement with the decision toterminate Borrell from the NAP. And, the letter dis-missing Borrell from the NAP involved the input ofBloomsburg, Geisinger, and joint Bloomsburg-Geisinger employees. (Plf.’s Ex. 41.) Thus, becauseBloomsburg and Geisinger jointly participated interminating Borrell from the NAP, Geisinger is astate actor for that activity.6

6 In its brief in support of its motion for summary judgment,Geisinger contends: “[s]imply put, one joint program with onestate university cannot convert all of Geisinger Health systemto a state actor.” (Doc. 117, 11.) Nothing in this opinion sug-gests that all of Geisinger Health System is a state actor. Ra-ther, as recognized by the Third Circuit in Leshko, this case in-volves a specific activity, i.e., the collaborative NAP andBorrell’s dismissal from that program, and whether Geisinger isa state actor for that activity. See Leshko, 423 F.3d at 340. And,even in those cases which focus on the actor and not the activi-ty, the Third Circuit made clear that “a successful showing un-der one of the Supreme Court’s actor-centered cases” does notmake “a private individual or entity an all-purpose state actor.”Id. at 340 n.2.

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2. Richer acted under color of state law.

Although Richer acknowledges that he was joint-ly employed by both Bloomsburg and Geisinger,(Plf.’s SMF, ¶ 10; Defs.’ CSF, ¶ 10), he contends thatBorrell is nevertheless unable to show that his “rela-tionship with the state transforms him into a stateactor.” (Doc. 117, 11.) In his brief in support of hismotion for summary judgment, Richer contends that“[w]ithin the NAP, [he] was not subject to anyBloomsburg University employee’s supervision . . . .”(Id. at 12.) Richer also argues that he was not a stateactor despite his relationship with Bloomsburg be-cause: (1) Geisinger paid the majority of his salary;(2) his salary did not increase once he became a jointBloomsburg-Geisinger employee; and (3) he was sub-ject to Geisinger’s policies and supervision regardingthe clinical aspect of the NAP. (Id. at 12.)

There is no genuine issue of material fact thatRicher acted under color of state law. According tothe Supreme Court, “state employment is generallysufficient to render the defendant a state actor.” Lu-gar v. Edmondson Oil, Inc., 457 U.S. 922, 935 n.18,102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982). “Thus, gen-erally, a public employee acts under color of state lawwhile acting in his official capacity or while exercis-ing his responsibilities pursuant to state law.” Westv. Atkins, 487 U.S. 42, 50, 108 S. Ct. 2250, 101 L. Ed.2d 2250 (1988) (citations omitted). And, whether anindividual is a state actor depends on his functionwhile working for the state, “not the amount of timehe spends in performance of those duties or the factthat he may be employed by others to perform simi-lar duties, that determines whether he is acting un-der color of law.” Id. at 56, 108 S. Ct. 2250 (notingthat the fact that the physician’s employment con-

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tract in that case “did not require him to work exclu-sively for the prison make him any less a state actorthan if he performed those duties as a full-time,permanent member of the state prison medicalstaff.”).

Here, Richer acted under color of state law in re-gard to his participation in the NAP and the dismis-sal of Borrell from that program. Richer was a “full-time employee of Bloomsburg University.” (RicherDep., 20:22-23.) At the times relevant to this action,Richer served as “Program Director,” which was de-fined as “an employee of both Geisinger and Univer-sity.” (Plf.’s Ex. 10.) Thus, Bloomsburg andGeisinger, on their own, designated Richer as a jointemployee. Among other responsibilities, Richer, as“Program Director,” was required to “oversee theProgram and serve as the liaison between Geisingerand University relative to the Program.” (Id.) Richerwas also required to “coordinate[ ] all academic andclinical activities for students in the Program,” andto “plan[ ], direct[ ], and administer[ ] the School ofNurse Anesthesia in collaboration with the Chair-person, Department of Nursing at Bloomsburg Uni-versity of PA.” (Doc. 82, 114.) Richer’s responsibili-ties also included planning and designing the curric-ulum, and planning “all instructional activities of theprogram to include classroom and clinical instructionby qualified faculty.” (Id.) The Program Director wasalso tasked with developing and maintaining policiesand procedures consistent with the mission state-ment of the program. (Id.) In view of his functionsand responsibilities as Program Director of the NAP,Richer was acting under color of state law in regardto his joint employment with Bloomsburg andGeisinger.

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Moreover, Richer terminated Borrell in his ca-pacity as a joint Bloomsburg-Geisinger employee.Following Reilly’s report of Borrell’s purported druguse, Richer communicated with Bloomsburg employ-ees, i.e., Dr. Ficca, joint Bloomsburg-Geisinger em-ployees, i.e., Dr. Wands, and Geisinger employees,i.e., Hallick and Lieberman, before Borrell was re-quested to submit to a drug test. After Borrell de-clined to take a drug test, Richer communicated withthese same individuals discussing her dismissal fromthe NAP. On September 25, 2012, the day afterBorrell refused to submit to a drug test, Richer com-pleted a “Statement of Violation of the DepartmentalCode of Academic and Professional Conduct Agree-ment.” (Plf.’s Ex. 18.) By letter that same day, Borrellwas terminated from the NAP. (Plf.’s Ex. 23.) Richersigned that letter, which was on joint Bloomsburg-Geisinger letterhead, as “Director, Nurse AnesthesiaProgram.” (Id.) Similarly, in Richer’s notification tothe NBCRNA about Borrell’s dismissal from theNAP, his communication designated him as “Pro-gram Director, Geisinger Health System/BloomsburgUniversity of PA.” (Plf.’s Ex. 33.) Richer dismissedBorrell from the NAP while acting as Program Direc-tor, i.e., as a joint employee of Geisinger and Blooms-burg. His action is properly attributable to the state,and he acted under color of state law for purposes of§ 1983.

B. Equal Protection

Borrell contends that her equal protection rightswere violated in relation to her dismissal from theNAP. Although Borrell originally asserted this claimagainst Dr. Ficca, Richer, and Geisinger, she haswithdrawn her equal protection claim as to Dr. Ficca.(Doc. 138, 20.) Thus, at issue is whether Richer and

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Geisinger are entitled to summary judgment on theequal protection claim.

The Equal Protection Clause of the FourteenthAmendment to the United States Constitution di-rects that no state shall “deny to any person withinits jurisdiction the equal protection of the laws.” U.S.Const. amend. XIV, § 1. Borrell’s equal protectionclaim is based on a “class of one” theory. The Su-preme Court, in Village of Willowbrook v. Olech, 528U.S. 562, 120 S. Ct. 1073, 145 L. Ed. 2d 1060 (2000),outlined this theory of equal protection. Under a“class of one” claim, a plaintiff asserts that “he hasbeen intentionally treated differently from otherssimilarly situated and there is no rational basis forthe difference in treatment.” Id. at 564, 120 S. Ct.1073. To recover on a “class of one” equal protectionclaim, Borrell “must, ‘at the very least,’ establish‘that (1) the defendant[s] treated [her] differentlyfrom others similarly situated, (2) the defendant[s]did so intentionally, and (3) there was no rationalbasis for the difference in treatment.’” Mun. RevenueServs., Inc. v. McBlain, 347 F. App’x 817, 825 (3d Cir.2009) (quoting Hill v. Borough of Kutztown, 455 F.3d225, 239 (3d Cir. 2006)).

Among other arguments advanced by Richer andGeisinger, they contend that no reasonable personcould conclude that Borrell was treated worse than asimilarly situated nurse. (Doc. 117, 16-20.)7 Accord-ing to Richer and Geisinger, Borrell’s comparator

7 Richer and Geisinger also argue that, “as a threshold matter,”Borrell’s “class of one” claim fails since it is not actionable inthe graduate school context. (Doc. 117, 14-16.) I need not ad-dress this issue because Borrell is unable to establish that shewas treated differently than a “similarly situated” individual.

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must be “nearly identical,” and she is unable to “pro-vide evidence of other nurses who refused to take adrug test and were not terminated.” (Id. at 18.) Inthat regard, Richer and Geisinger note that the rec-ord contains evidence that in the last few years, onlyfour registered nurses employed by Geisinger haverefused a drug test, and each one was subsequentlyterminated. (Id. at 20-21.)

In opposition, Borrell argues that she has identi-fied two comparators. The first comparator relates toRicher and Geisinger’s involvement with a nurse an-esthesia program with a different university in 1985.(Doc. 137, 13.) A student in that program was caughtstealing narcotics from Geisinger, but was nonethe-less permitted to remain in the program. (Id.) Thatstudent also had a change in performance, failed toperform at the level expected of a student with thatexperience, and there were complaints about the at-titudes and skills of that student. (Richer Dep.,248:11-251:4.) Borrell argues, however, that whilethere are some differences between herself and thatcomparator, they are not fatal to her “class of one”claim because they demonstrate “that the personwhose actions were far worse and far more danger-ous was treated far better than Ms. Borrell.” (Doc.137, 13-14.)

The second comparator identified by Borrell isElizabeth Peterman (“Peterman”), who was a stu-dent in the NAP. There were efforts in 2010 by Rich-er and Geisinger to dismiss Peterman from the NAPfor unsuitability. (Id. at 14.) In response to thecharges of unsuitability, Peterman was providedwith: (1) the opportunity to submit evidence to refutethe claim; (2) information about the procedures re-lated to the dismissal from the program; (3) a meet-

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ing so she could learn what was stated against herand to explain herself; and (4) the option to have arepresentative at that meeting. (Id. at 15.) In addi-tion, Peterman attended a meeting with Richer andLieberman. And, during that meeting, they werehonest with Peterman about why she was beingcharged with unsuitability and they did not withholdinformation from her. (Id. at 15-16.) Although Pe-terman lost the initial hearing, she appealed and wasreinstated to the NAP. (Id. at 16-17.) Borrell arguesthat she was similarly situated to Peterman but nev-ertheless treated differently. Borrell acknowledgesthat the stated reasons for termination were differ-ent, but this distinction, she contends, is immaterialbecause she and Peterman were both in the NAP andtheir terminations involved the same parties andnon-parties. (Id. at 17.) And, unlike Peterman whowas afforded ample procedural safeguards, Borrellwas denied notice, a hearing, and any other protec-tions. (Id.) Thus, she concludes that there is suffi-cient evidence to survive summary judgment on herequal protection claim.

“Persons are similarly situated under the EqualProtection Clause when they are alike in all relevantaspects.” Startzell v. City of Phila., 533 F.3d 183, 203(3d Cir. 2008) (quotation marks and citation omit-ted). But, “the law in the Third Circuit does not re-quire [the plaintiff] to show that the [comparators]are identical in all relevant respects but only thatthey are alike.” Southersby Dev. Corp. v. Borough ofJefferson Hills, 852 F. Supp. 2d 616, 628 (W.D. Pa.2012) (citing Startzell, 533 F.3d at 203). The ThirdCircuit’s recent non-precedential decision in Spiker vWhittaker, 553 F. App’x 275 (3d Cir. 2014) is instruc-tive on the required similarity between a plaintiffand his or her comparator to be “similarly situated”

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for a “class of one” claim. In Spiker, the plaintiff pledguilty to two crimes and was required to register as asex offender. See id. at 276-77. Twenty-three days af-ter his guilty plea, the plaintiff was arrested for fail-ing to register as a sex offender. See id. at 277. Heregistered that same day. See id. The plaintiff wassubsequently arrested and charged with failing tocomply with the registration requirement, but hewas acquitted of that charge. The plaintiff then fileda civil rights action asserting, among other claims, a“class of one” equal protection claim. See id. Accord-ing to the plaintiff, “twenty other unregistered sex of-fenders were not arrested or prosecuted- they weresimply prompted to register.” Id. at 280. The ThirdCircuit rejected the plaintiff’s claim because he failedto show the comparators were similarly situated. Id.at 280-81. The court noted that nineteen of his com-parators were convicted of different crimes, and theonly comparator that was convicted of one of thesame crimes as the plaintiff registered thirteen dayssooner. Id. Thus, the Third Circuit concluded thatthe plaintiff failed to establish that he was unrea-sonably discriminated against and that the equalprotection claim failed. See id. at 281.

In view of the degree of similarity required be-tween a plaintiff and his or her comparator to makeout a “class of one” claim, I agree with Richer andGeisinger that Borrell fails to demonstrate that ei-ther of her comparators are “alike in all relevant as-pects.” With respect to the first comparator cited byBorrell, that student was involved in a different pro-gram with a different university. That student ad-mitted that he had a drug problem and soughttreatment after he was confronted about stealingnarcotics. Upon completion of substance abuse coun-seling, that student was permitted to return to the

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program. Borrell, on the other hand, was dismissedfor failure to submit to a drug test, and her drug useor non-use is not at issue in this litigation. Thus, theonly respect in which Borrell is similar to this com-parator is that they were both students in nursingprograms involving Geisinger and Richer. That,however, is too broad to satisfy the similarly situatedrequirement for a “class of one” claim.

Borrell is also not like her second comparator,Peterman, in all relevant aspects. Whereas Peter-man’s termination proceedings followed from acharge of unsuitability, Borrell was subject to termi-nation from the NAP for failure to submit to a drugtest. Thus, even though Borrell and Peterman wereboth students in the NAP facing termination fromthe program, these similarities do not render Borrelland Peterman “similarly situated” for purposes of a“class of one” claim.

Rather, to be “similarly situated,” Borrell wouldneed to demonstrate that she was treated differentlyfrom another student who also refused to submit to adrug test. Or, at the least, Borrell would need toidentify an individual that was treated more favora-bly than her despite refusing to comply with a NAPpolicy upon request. Borrell has not identified such acomparator in this case. Moreover, the recorddemonstrates that in the last few years, four regis-tered nurses employed by Geisinger have refused adrug test. These nurses were all subsequently termi-nated. (Defs.’ SMF, ¶ 51; Plf.’s CSF, ¶ 51.) Thus, be-cause Borrell fails to demonstrate that Richer andGeisinger treated her differently from others “simi-larly situated,” she is unable to establish a “class ofone” claim. Richer and Geisinger are entitled tosummary judgment on the equal protection claim.

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C. Procedural Due Process

Borrell also asserts that her procedural due pro-cess rights were violated with regard to her termina-tion from the NAP. Borrell contends that she wasdeprived of both liberty and property interests with-out due process of law.

The Fourteenth Amendment to the United StatesConstitution provides, in pertinent part, that a stateshall not “deprive any person of life, liberty, or prop-erty, without due process of law; . . .” U.S. Const.amend. XIV, § 1. To establish a procedural due pro-cess claim under § 1983, Borrell must prove (1) adeprivation of an individual interest encompassed bythe Fourteenth Amendment’s protection of life, liber-ty, or property, and (2) that the procedures availabledid not provide due process of law. See Hill v. Bor-ough of Kutztown, 455 F.3d 225, 233-34 (3d Cir.2006).

All parties seek summary judgment on bothBorrell’s procedural due process deprivation of prop-erty interest claim and deprivation of liberty interestclaim, i.e., her stigma-plus claim. The stigma-plusclaim will be addressed first.

1. Liberty Interest Claim

Borrell asserts that she was deprived of her lib-erty interest in reputation in violation of the DueProcess Clause when she was terminated from theNAP. The Supreme Court held in Wisconsin v.Constantineau, 400 U.S. 433, 91 S. Ct. 507, 27 L. Ed.2d 515 (1971) that an individual has a protectable in-terest in reputation. “Where a person’s good name,reputation, honor, or integrity is at stake because ofwhat the government is doing to him, notice and anopportunity to be heard are essential.” Id. at 437, 91

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S.Ct. 507. Courts “subsequently clarified, however,that ‘reputation alone is not an interest protected bythe Due Process Clause.’” Hill v. Borough ofKutztown, 455 F.3d 225, 236 (3d Cir. 2006) (quotingVersarge v. Twp. of Clinton, 984 F.2d 1359, 1371 (3dCir. 1993)). “Rather, to make out a due process claimfor deprivation of a liberty interest in reputation, aplaintiff must show a stigma to his reputation plusdeprivation of some additional right or interest.” Id.(citing Paul v. Davis, 424 U.S. 693, 701, 96 S. Ct.1155, 47 L. Ed. 2d 405 (1976)). “This has been re-ferred to as the ‘stigma-plus’ test.” Dee v. Borough ofDunmore, 549 F.3d 225, 233-34 (3d Cir. 2008).

To satisfy the “plus” prong of the stigma-plustest, a plaintiff must demonstrate an “alteration orextinguishment of ‘a right or status previously rec-ognized by state law.’” Hill, 455 F.3d at 237 (quotingPaul v. Davis, 424 U.S. 693, 711, 96 S. Ct. 1155, 47L. Ed. 2d 405 (1976)). A constitutionally protectedproperty interest can qualify as a sufficient “plus.”Dee, 549 F.3d at 234. Because Borrell had a protect-ed property interest in the continuation in her courseof study in the NAP as described in detail below, shehas established the “plus” prong of her stigma-plusclaim.

“In order to satisfy the ‘stigma’ prong, a plaintiffmust show (1) that the stigmatizing statement wasmade publically, and (2) that the statement was sub-stantially and materially false.” Kocher v. LarksvilleBorough, 548 F. App’x 813, 820 (3d Cir. 2013) (citingHill, 455 F.3d at 236); Ersek v. Twp. of Springfield,102 F.3d 79, 83-84 (3d Cir. 1996) (“For governmentaction to infringe the ‘reputation, honor, or integrity’of an individual, that government action first mustinvolve a publication that is substantially and mate-

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rially false.”). Because the “stigma” prong requiresthat the publication must be false, “[a] truthfulstatement that damages one’s reputation simply doesnot trigger any constitutional concerns.” McCarthy v.Darman, No. 07-3958, 2009 WL 1812788, at *10(E.D. Pa. June 24, 2009), aff’d, 372 F. App’x 346, 351(3d Cir. 2010).

The stigmatizing statements in this case, accord-ing to Borrell, were made public in the email sent byRicher attaching the 2012 Change of Student StatusForm and supporting documentation to theNBCRNA. (Plf.’s Ex. 33.)8 In her brief in support ofher motion for summary judgment, Borrell acknowl-edges that “technically, each individual statement inPlaintiff’s Exhibit 33 is true.” (Doc. 87, 12.) Borrellnevertheless argues that the “implications” in thatexhibit and the “facts omitted” from it render it ma-terially false. (Id. at 12-13.) Borrell goes on to statethat “literal truth does not make defendants’ state-ments to the NBCRNA to be true.” (Id. at 14.)

Dr. Ficca, on the other hand, argues that becauseRicher’s notification to the NBCRNA was “substan-tially true,” Borrell is unable to satisfy the “stigma”prong. (Doc. 130, 89.) Richer and Geisinger likewiseargue that the notification to the NBCRNA does notevidence any false statements.

Defendants’ motions for summary judgment onthe liberty interest claim will be granted andBorrell’s motion will be denied because Borrell is un-able to establish the “stigma” prong of the claim.

8 In her Amended Complaint, Borrell also alleged that Defen-dants deprived her of her liberty interest by falsely publicizingthat she used controlled substances. Borrell has since aban-doned any claim putting her use or non-use of drugs at issue.

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Richer’s communication to the NBCRNA indicatesthat: (1) Borrell was terminated for failure to complywith a request to submit to a drug test; (2) the testwas requested as a result of concerns regardingchanges in her appearance and demeanor; (3) Borrellwas told that she was required to cooperate with adrug test as a condition of the NAP; and (4) Borrellwas informed that returning at a later time to sub-mit to a drug test was not an option. (Plf.’s Ex. 33.)Although Borrell argues that this communicationfailed to disclose, among other information, that shewas not required to take a test under the terms ofthe Drug and Alcohol Policy, there is nothing statedin the documentation sent to the NBCRNA that wasnot true. Indeed, Borrell concedes that all of thestatements contained in those documents are “tech-nically” true. As such, these “statements do not showa stigma because they were not false.” McCarthy, 372F. App’x at 351 (publication on the internet of bor-ough meeting minutes was not stigmatizing becausethe plaintiff was suspended and the defendants wereengaged in an on-going investigation). Defendantsare therefore entitled to summary judgment on thestigma-plus claim.

2. Property Interest Claim

Borrell also sets forth a due process claim basedon the contention that she was deprived of her prop-erty interest in the continuation of her course ofstudy without due process of law when she was ter-minated from the NAP. All parties seeks summaryjudgment on this claim.

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a. Borrell had a property interest inthe continuation of her study in theNAP.

For purposes of procedural due process, courtslooks to state law to determine whether a propertyinterest exists. Dee v. Borough of Dunmore, 549 F.3d225, 229 (3d Cir. 2008) (citing Board of Regents v.Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L. Ed. 2d548 (1972) (“Property interests are not created by theConstitution. Rather they are created and their di-mensions are defined by existing rules or under-standings that stem from an independent sourcesuch as state law.”)). As I stated in denying Defen-dants’ motion to dismiss Borrell’s procedural dueprocess property interest claim, “[c]ourts in the ThirdCircuit have repeatedly recognized that a graduatestudent has a property interest protected by proce-dural due process in the continuation of his or hercourse of study under Pennsylvania law.” Borrell v.Bloomsburg Univ., 955 F. Supp. 2d 390, 402 (M.D.Pa. 2013) (citing Coulter v. East Stroudsburg Univ.,No. 10-CV-0877, 2010 WL 1816632, at *2 (M.D. Pa.May 5, 2010); Manning v. Temple Univ., No. Civ. A.03-4012, 2004 WL 3019230, at *8 (E.D. Pa. Dec. 30,2004); Stoller v. College of Medicine, 562 F. Supp.403, 412 (M.D. Pa. 1983); Ross v. Pennsylvania StateUniv., 445 F. Supp. 147, 153 (M.D. Pa. 1978)); see al-so Abernathy v. Indiana Univ. of Pa., No. 12-1119,2013 WL 3200519, at *1 (W.D. Pa. June 18, 2013)(“the Court disagrees with Defendants’ argumentthat Plaintiff cannot state a 42 U.S.C. § 1983 claimpredicated on a Fourteenth Amendment due processviolation when he was dismissed from the IUP grad-uate program in which he was enrolled because hehas not demonstrated that he has a property interestin his education protected by the Fourteenth

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Amendment, nor that he was denied any process thatmay have been due.”); Osei v. Temple Univ. of Com-monwealth Sys. of Higher Educ., No. 10–2042, 2011WL 4549609 (E.D. Pa. Sept. 30, 2011) aff’d sub nom.Osei v. Temple Univ.,581 F. App’x 86 (3d Cir. 2013).Accordingly, I held that Borrell had a protectedproperty interest in the continuation of her course ofstudy in the NAP under Pennsylvania law. SeeBorrell, 955 F. Supp. 2d at 402-03.

Defendants urge that I revisit this holding inlight of evidence obtained during discovery. Richerand Geisinger argue that any due process rightBorrell had in her graduate education was limitedsolely to the degree at issue, and only Bloomsburgcould award that degree. (Doc. 117, 23-25.) Geisingerand Richer define Borrell’s property right too nar-rowly. Indeed, this Court in Ross held that the stu-dent at issue in that case “had a property interest inthe continuation of his education as a graduate stu-dent in the ceramics program at Penn State.” Ross,445 F. Supp. at 153 (emphasis added); see alsoBorrell, 955 F. Supp. 2d at 403 (“Borrell had a prop-erty interest in her continued participation in theNurse Anesthesia Program.”); Osei, 2011 WL4549609, at *7 (student’s interest is in “pursuing orcontinuing an education”). Furthermore, this argu-ment essentially repeats Geisinger’s claim that it didnot act under color of state law. But, as stated,Geisinger is a state actor by virtue of its collabora-tion and “willful participation in joint activity” withBloomsburg in the NAP.

Dr. Ficca also asks that I reconsider the findingthat Borrell had a protected property interest in thecontinuation of her study in the NAP. In that regard,although she contends that additional facts revealed

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in discovery indicate that the property interest issueshould be revisited, she relies on the same premisethat I found unconvincing in denying her motion todismiss: Borrell’s termination from the NAP did notimpact a property interest because she could havestill (theoretically) pursued a MS degree in Nursingfrom a different Bloomsburg program. (Doc. 119, 5.)As I previously explained in this litigation, it is irrel-evant that Borrell may have been able to pursue adifferent degree from a Bloomsburg nursing pro-gram. See Borrell, 955 F. Supp. 2d at 403. Discoveryhas only reinforced that Borrell had a property inter-est in the continuation of her study in the NAP.Borrell applied and was accepted into the NAP, sheenrolled in the program, she participated in the pro-gram, and she paid her tuition. Moreover, accordingto Dr. Ficca, in order for Borrell to obtain a MS de-gree from a different nursing program, such as thenurse practitioner program or the community healthprogram, she would have needed to apply for thatspecific program. (Dr. Ficca Dep., 89:23-90:4.)Borrell’s property interest was in the continuation ofher course of study in the NAP.

Lastly, I will briefly address Dr. Ficca’s argu-ment that Borrell does not have a property interestpursuant to this Court’s statement in Ross thatgraduate students have “a reasonable expectationbased on statements of policy by [the university] andthe experience of former students that if [they] per-form[ ] the required work in a satisfactory mannerand pay[ ] [their] fees [they] will receive the degree[they] seek[ ].” Ross v. Pennsylvania State Univ., 445F. Supp. 147, 153 (M.D. Pa. 1978). In view of thispassage, Dr. Ficca contends that Borrell, as a resultof her refusal to submit to a drug test, “could not per-form the work required because she could no longer

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provide patient care at GMC and therefore she couldnot complete the required clinical training.” (Doc.119, 8.) Thus, Dr. Ficca concludes that “becauseplaintiff could not perform the work required for theNAP, she does not have a property interest in obtain-ing that degree.” (Id.) Or, as she states in her replybrief in further support of her motion for summaryjudgment, “[t]he threshold requirement in order toestablish a property interest to a graduate degree isto be able to perform the required work, whichBorrell could not do.” (Doc. 149, 15.)

Dr. Ficca’s argument is flawed. Borrell enrolledin the NAP in 2011, and there is nothing in the rec-ord suggesting that Borrell was unable to performthe required work in the NAP at that time, or at anypoint thereafter, up and until September 24, 2012.As such, it is unclear what Dr. Ficca means when shestates that Borrell was unable to satisfy the “thresh-old requirement” of performing the required workwhen she complied with the program’s requirementsfor over one year. Thus, Dr. Ficca appears to suggestthat Borrell had a property interest while she per-formed satisfactorily in the NAP, here from 2011 un-til September 24, 2012. But, as of September 24,2012, the point in which Borrell refused to submit toa drug test, Dr. Ficca implies that this interest wassomehow extinguished and Borrell no longer had aviable property interest.9 This premise is incon-

9 Dr. Ficca’s submissions could also be interpreted as suggestingthat because Borrell was unable to meet the program’s re-quirements in September 2012, she never had a property inter-est in the continuation of her course of study. However, this po-sition ignores the salient fact that Borrell participated in theNAP and satisfied the program’s requirements for well over ayear before she refused to submit to a drug test. And, since the

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sistent with the concept of procedural due processand the analysis of such claims. Cf. Schmidt v.Creedon, 639 F.3d 587, 595 (3d Cir. 2011) (“A proce-dural due process claim is subject to a two-stage in-quiry: (1) whether the plaintiff has a property inter-est protected by procedural due process, and (2) whatprocedures constitute due process of law.”) Here, be-cause Borrell had a property interest in the continu-ation of her course of study once she became a stu-dent in the NAP, the question becomes whether theprocedures afforded Borrell in relation to the depri-vation of that interest satisfied the requirements ofthe Due Process Clause of the Fourteenth Amend-ment.

b. Borrell’s termination from the NAPwas a disciplinary dismissal.

Since Borrell had a protected property interest inthe continuation of her education in the NAP, “thequestion then becomes what process is due to protectit.” Shoats v. Horn, 213 F.3d 140, 143 (3d Cir. 2000)(citing Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L. Ed. 2d 484 (1972)). In this case, theamount of process due depends on whether Borrell’sdismissal from the NAP was “academic” or “discipli-nary.”

The Supreme Court addressed the due processrights of students in state operated universities inBoard of Curators of the University of Missouri v.

possibility always exists that a student will be unable to per-form the required work or meet the requirements of a course ofstudy (for any of a variety of reasons) during the pendency ofthe course or program, accepting Dr. Ficca’s position would bethe equivalent of finding that a graduate student does not havea protected property interest in the continuation of his or hercourse of study. Pennsylvania law, however, holds otherwise.

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Horowitz, 435 U.S. 78, 98 S. Ct. 948, 55 L. Ed. 2d 124(1978), and Regents of the University of Michigan v.Ewing, 474 U.S. 214, 106 S. Ct. 507, 88 L. Ed. 2d 523(1985). In Horowitz, the Supreme Court distin-guished between academic and disciplinary dismis-sals from educational institutions. See Horowitz, 435U.S. at 89-90, 98 S. Ct. 948. The Court concludedthat the dismissal of the medical student in that casewas academic and not disciplinary because it “restedon the academic judgment of school officials that shedid not have the necessary clinical ability to performadequately as a medical doctor and was making in-sufficient progress toward that goal.” Id. An academ-ic dismissal, according to the Court:

is by its nature more subjective and evalua-tive than the typical factual questions pre-sented in the average disciplinary decision.Like the decision of an individual professoras to the proper grade for a student in hiscourse, the determination whether to dismissa student for academic reasons requires anexpert evaluation of cumulative informationand is not readily adapted to the proceduraltools of judicial or administrative decisionmaking.

Id. at 90, 98 S. Ct. 948. The Horowitz Court furtherstated that the determination of whether the studentwould “make a good doctor” could take into accountpersonal attributes of the student, in that case herpersonal hygeine and ability to keep a clinical sched-ule. Id. at 91 n.6, 98 S. Ct. 948.

The Horowitz Court explained that disciplinarydismissals, conversely, involve “the violation by astudent of valid rules of conduct” or “disruptive andinsubordinate behavior.” Horowitz, 98 S. Ct. 86, 90,

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98 S. Ct. 948. As a result, “[t]here is a clear dichoto-my between a student’s due process rights in disci-plinary dismissals and in academic dismissals,” id. at88 n.4, 98 S. Ct. 948, and the difference between thetwo “calls for less stringent procedural requirementsin the case of an academic dismissal.” Id. at 86, 98 S.Ct. 948.

The parties dispute whether Borrell’s dismissalfrom the NAP was academic or disciplinary. WhereasDefendants classify Borrell’s dismissal as academicbecause she could not fulfill the clinical requirementnecessary to complete the NAP, Borrell contendsthat her dismissal was disciplinary and Defendantsalways treated her dismissal as “nonacademic.”

There is no bright-line test for determiningwhether a dismissal is academic or disciplinary innature. See Fuller v. Schoolcraft Coll., 909 F. Supp.2d 862, 874 (E.D. Mich. 2012). And, “the mere factthat faculty base their decision on a student’s con-duct rather than test results is insufficient to estab-lish that the decision was disciplinary rather thanacademic.” Simmons v. Wayne Cnty. Cmty. Coll., No.11-14936, 2014 WL 764632, at *5 (E.D. Mich. Feb.24, 2014); Ku v. State of Tenn., 322 F.3d 431, 436(6th Cir. 2003) (“there can also be no doubt that inthe context of medical school, academic evaluationsare not limited to consideration of raw grades or oth-er objective criteria.”). Instead, “federal courts havefound an academic dismissal where a student’sscholarship or conduct reflects on the personal quali-ties necessary to succeed in the field in which he orshe is studying and is based on at least partially sub-jective appraisal of those qualities.” Allahverdi v. Re-gents of the Univ. of N.M., No. 05-277, 2006 WL1313807, at *11-14 (D.N.M. Apr. 25, 2006) (citing

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Horowitz, 435 U.S. at 91 n. 6, 98 S. Ct. 948; Fenje v.Feld, 398 F.3d 620, 625 (7th Cir. 2005); Hennessy v.City of Melrose, 194 F.3d 237, 242-43, 251 (1st Cir.1999); Firester v. Board of Governors of Wayne StateUniv., No. 89-1772, 1990 WL 99493, at *2-3 (6th Cir.July 18, 1990)). Disciplinary dismissals, in compari-son, “are objective in nature and relate to rules ofconduct rather than a student’s professional abili-ties.” Id. at *14. Accordingly, “an academic institu-tion imposes a disciplinary dismissal in the morelimited situation where a student has violated therules of conduct that the educational institution hasset forth and is based on an objective appraisal of thestudent’s conduct.” Id. This is in accord with theThird Circuit’s decision in Mauriello, where the courtstated that it had “no difficulty” in finding a stu-dent’s dismissal from a doctoral program to be aca-demic and not disciplinary because “it was not a caseof her being compelled by rule, order, or law of theschool to do something and not having done it gettingdischarged. This is not a case of somebody being dis-ruptive in her misconduct, . . . .” Mauriello v. Univ. ofMed. & Dentistry of N.J., 781 F.2d 46, 50 (3d Cir.1986) (internal alteration omitted). Rather, the dis-missal was academic because “[t]he focus of the Uni-versity’s inquiry was on the quality of the plaintiff’sresearch and her dedication to academic pursuits,not misconduct.” Id.

In light of this authority, Borrell’s dismissal fromthe NAP was disciplinary and not academic in na-ture. First, the decision to dismiss Borrell from theNAP was not based on any subjective evaluations.Defendants did not focus their inquiry on Borrell’sacademic abilities, her personal qualities, or whethershe could succeed as a nurse anesthetist. Rather,Borrell’s dismissal is better characterized as a prod-

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uct of misconduct. Specifically, Borrell, according toDefendants, was required to submit to a drug testwhen it was requested on September 24, 2012. Whenshe refused to submit to a drug test, she was termi-nated from NAP. Thus, pursuant to the reasoning inMauriello, Borrell was dismissed because she wasobligated by rule of the program to take a drug test,and having not submitted to a drug test, she wasdismissed from the NAP.10

Second, the characterization of Borrell’s termina-tion from the NAP immediately following her dismis-sal by Bloomsburg, Geisinger, and joint Bloomsburg-Geisinger employees supports a finding that herdismissal was disciplinary in nature. For example,on Wednesday, September 26, 2012, the day aftershe was terminated from the NAP, Richer informedHallick that Borrell “wanted to file ‘a non-academicgrievance’, a process which does not exist.” (Plf.’s Ex.27.) Richer emailed Lieberman on October 1, 2012,instructing him that Borrell’s attempt to grieve hertermination from the program was a “‘nonacademic’grievance of which they do not have a process to dealwith.” (Plf.’s Ex. 28.) By email to Hallick andLieberman on October 2, 2012, Richer again statedthat Borrell could not grieve her termination becauseit was “non-academic.” (Plf.’s Ex. 29.) Dr. Ficca sentan email on October 4, 2012 to Lieberman and Rich-er. Attached to that email was a draft letter toBorrell, which stated, in pertinent part, that “[t]hissituation is a non-academic issue and does not quali-

10 And, as discussed, the Drug and Alcohol Policy was adoptedas a rule for students in the program. (Plf.’s Ex. 16, 70(“[s]tudents will comply with the drug and alcohol policies anddrug testing procedures as required by agencies affiliated withthe Department of Nursing.”).)

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fy for the grievance process at Bloomsburg Universi-ty.” (Plf.’s Ex. 32.) And, by letter to Borrell dated Oc-tober 19, 2012, Dr. Ficca stated: “This situation is anonacademic issue.” (Plf.’s Ex. 19.) Likewise, Dr.Marande testified that Borrell’s particular case in-volved a “non-academic issue.” (Dr. Marande Dep.,68:2-6.) Thus, Defendants’ own admissions indicatethat Borrell was not dismissed from the NAP for ac-ademic reasons.

Third, while Dr. Ficca claims that the dismissalwas academic because Borrell “simply could not ful-fill the particular curriculum requirements of a de-gree program” following her refusal to submit to adrug test (Doc. 130, 18), Borrell was only unable tocomplete the requirements of the NAP after she hadbeen terminated from the clinical portion of the pro-gram. As Defendants admit, Borrell’s termination“from the clinical portion of the NAP was a termina-tion from the entire NAP.” (Plf.’s SMF, ¶ 68; Defs.’CSF, ¶ 68.) Borrell’s dismissal from the NAP wasdisciplinary in nature.

c. Borrell was dismissed from theNAP without due process of law.

In cases such as this where the property interestat issue is a student’s continuation of his or hercourse of study, the level of due process required de-pends on whether the dismissal is for academic ordisciplinary reasons. For academic dismissals, theThird Circuit has stated that “courts are generallyill-equipped to review subjective academic appraisalsof educational institutions, and admonished courts topermit university faculties a wide range of discretionin making judgments as to the academic perfor-mance of students.” Hankins v. Temple Univ., 829F.2d 437, 444 (3d Cir. 1987) (citations omitted). As

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such, “when a student is discharged for academicreasons, an informal faculty evaluation is all that isrequired.” Id. at 445 (citing Mauriello v. Univ. ofMed. & Dentistry of N.J., 781 F.2d 46, 51 (3d Cir.1986)). Conversely, with respect to a student’s sus-pension for ten days or less from a public school fordisciplinary reasons, the Supreme Court has heldthat “the student [must] be given oral or written no-tice of the charges against him and, if he deniesthem, an explanation of the evidence the authoritieshave and an opportunity to present his side of thestory.” Goss v. Lopez, 419 U.S. 565, 581, 95 S. Ct.729, 42 L .Ed. 2d 725 (1975) (suspension of highschool students). As such, in those cases, the studentis entitled “‘to an informal give-and-take’” with theadministrative body so the student has “‘the oppor-tunity to characterize his conduct and put it in whathe deems the proper context.’” Horowitz, 435 U.S. at85-86, 98 S. Ct. 948 (quoting Goss, 419 U.S. at 584,95 S. Ct. 729).

The deprivation to which Borrell was subjectedin this case, though, was more severe than the ten-day high-school suspension in Goss. And, the GossCourt noted that the severity of the deprivation “mayrequire more formal procedures.” Goss, 419 U.S. at584, 95 S. Ct. 729; accord Horowitz, 435 U.S. at 86n.3, 98 S. Ct. 948 (“the severity of the deprivation isonly one of several factors that must be weighed indeciding the exact due process owed.”). As a result,“those cases considering the adequacy of notice andhearing procedures in the context of graduate stu-dent deprivations have dealt with procedural re-quirements significantly more extensive than thosedescribed in Goss.” Pugel v. Bd. of Tr. of the Univ. ofIll., 378 F.3d 659, 664 (7th Cir. 2004) (citing Than v.Univ. of Texas Med. Sch. at Houston, 188 F.3d 633,

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635 n.2 (5th Cir. 1999); Crook v. Baker, 813 F.2d 88,97 (6th Cir.1987); Nash v. Auburn Univ., 812 F.2d655, 660-61 (11th Cir. 1987); cf. Hall v. Med. Coll. ofOhio at Toledo, 742 F.2d 299, 308-09 (6th Cir.1984));see also Woodis v. Westark Cmty. Coll., 160 F.3d 435,440 (8th Cir. 1998) (“procedural due process must beafforded a student on the college campus by way ofadequate notice, definite charge, and a hearing withopportunity to present one’s own side of the case andwith all necessary protective measures.”). In that re-gard, when a student is dismissed or expelled for dis-ciplinary reasons, a court should balance theMathews factors to determine if the student is enti-tled to procedural protections beyond those requiredunder Goss. See Allahverdi, 2006 WL 1313807, at*11,*19 (citing Mathews v. Eldridge, 424 U.S. 319,335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976)); see also Lev. Univ. of Med. & Dentistry of N.J., 379 F. App’x171, 174-75 (3d Cir. 2010) (citing Mathews and con-cluding that disciplinary proceedings resulting in thedismissal of student from dental school satisfied dueprocess requirements where the procedure included“a hearing before a panel of students and faculty, theright to present witnesses and evidence, the right tocross examine witnesses, a lay adviser in the room,an attorney outside the hearing room, two levels ofappeal (during one of which he was represented bycounsel), and the opportunity to submit further evi-dence after the hearing.”). Recently, Judge Brann ofthis Court emphasized that “[d]isciplinary dismissalsmust be preceded by, at least, notice to the student ofthe charges against her, an explanation of evidenceunderlying the charges, and an opportunity for thestudent to present her side of the story.” Valentine v.Lock Haven Univ., No. 13-523, 2014 WL 3508257, at

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*7 (M.D. Pa. July 14, 2014) (citing Palmer v.Merluzzi, 868 F.2d 90, 93 (3d Cir.1989)).

Defendants contend that Borrell’s due processrights were not violated here because she was pro-vided all process due. Dr. Ficca argues that the onlyprocess due in this case was an “informal-give-and-take” between the student and the administrativebody, which, Dr. Ficca claims, took place. (Doc. 119,11-15.) Specifically, Borrell “was afforded the level ofprocess that she was due because she had informaldiscussions with GMC and Bloomsburg before herdismissal from the NAP.” (Id. at 11.) Dr. Ficca alsocontends that post-termination communications be-tween herself and both Dr. Marande and Borrell sat-isfied Borrell’s due process rights. (Id. at 13-14.) Incomparison, Richer and Geisinger maintain thatBorrell’s failure to avail herself of the state proce-dures provided by Pennsylvania’s AdministrativeAgency Law forecloses her due process claim. (Doc.117, 25-27.)

Here, I will assume that Borrell was entitled toonly notice of the charges against her, an explana-tion of evidence underlying the charges, and an op-portunity to present her side of the story, i.e., theprocedures outlined in Goss. And, because bothBorrell and Defendants move for summary judgmenton the deprivation of property interest claim, I mustconsider the evidence presented by each in the lightmost favorable to the non-moving party. In consider-ing Borrell’s motion for partial summary judgmentand viewing the evidence in the light most favorableto Dr. Ficca, Richer, and Geisinger, there is no genu-ine issue that Borrell’s dismissal from the NAP oc-curred without due process of law.

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The decision to terminate Borrell from the NAP,according to Richer, was made by the end of businesson Monday, September 24, 2012, the day she refusedto submit to the drug test. (Richer Dep., 161:13-21.)The letter terminating Borrell from the NAP wasdated September 25, 2012 and indicated that herdismissal was effective that day. (Plf.’s Ex. 23.) As aresult, Borrell was deprived of her property interestin the continuation of her course of study, at the lat-est, on September 25, 2012.

Dr. Ficca, however, asserts that prior to Borrell’sdismissal on September 25, 2012, an “informal-give-and-take” with the administrative body satisfyingBorrell’s due process rights took place. I disagree.

For one, Borrell’s discussion with Richer andLieberman on September 24, 2012 did not satisfy therequirements of due process. That meeting wascalled, according to Richer, to address concerns aboutchanges in Borrell’s appearance and demeanor andsuspicions of drug use, and, also, to inform her thatthey wanted her to take a drug test. (Richer Dep.,117:6-18.) After indicating her hesitancy to submit toa drug test that day, the parties discussed the possi-bility that Borrell could face consequences. The par-ties dispute whether termination from the NAP wasdiscussed as a consequence for refusing to submit toa drug test. But, it is irrelevant whether dismissalwas discussed as a potential consequence at thatmeeting. The meeting was about Borrell submittingto a drug test under the Drug and Alcohol Policy.11

11 I recognize Borrell’s contention that she was not required tosubmit to a drug test under the terms of the policy. But, asstated in the text, resolution of whether reasonable suspicionexisted to request a drug test is not the issue before me.

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That meeting was not about whether Borrell, at thetime, was subject to termination from the NAP, andshe had no notice before the meeting of the chargesagainst her.

Furthermore, Dr. Marande’s telephone conversa-tion with Borrell on September 24, 2012 did not sat-isfy the requirements of due process outlined in Gossand Horowitz. Borrell spoke with Dr. Marande to in-form him that she was requested to take a drug testbut she refused. (Defs.’ SMF, ¶ 109; Plf.’s CSF, ¶109.) Borrell also indicated to Dr. Marande at thattime that she was now willing to comply with thedrug test. (Defs.’ SMF, ¶ 110; Plf.’s CSF, ¶ 110.) Dr.Marande instructed Borrell to contact Richer andGeisinger personnel to let them know that she waswilling to submit to a drug test and that the issueneeded to be discussed with the Human ResourcesDepartment at Geisinger. (Defs.’ SMF, ¶ 111; Plf.’sCSF, ¶ 111.) This conversation was not about provid-ing Borrell an opportunity to contest her terminationfrom the NAP. Instead, it involved Borrell “com-plain[ing] that it was unfair to ask her to take a drugtest.” (Dr. Marande Dep., 33:3-4.) And, other thanindicating that she should have complied with thedrug test request and that Borrell should take up theissue regarding her willingness to take the test withGeisinger Human Resources, Dr. Marande had noth-ing else to say about that issue. (Id. at 71:19-25.)

Likewise, Borrell’s meeting with Richer andLieberman and her conversation with Dr. Marandeon September 24, 2012 also failed to provide her withan opportunity to be heard. Pursuant to Goss andHorowitz, a student facing a disciplinary dismissal isentitled to an opportunity to present his or her sideof the story or to characterize his or her conduct and

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put it in the proper context. In this case, Borrell wasnot afforded any opportunity to put her conduct inthe proper context. Rather, the day after she refusedto submit to the drug test, she was terminated fromthe NAP. In dismissing her without an opportunityto be heard, Borrell was denied the chance to disputeGeisinger’s claim that she was required to submit toa test under the circumstances. Of course, having al-ready refused to take the test, Borrell likely faceddifficulty in convincing Geisinger, Bloomsburg, andjoint Bloomsburg-Geisinger officials that she was notrequired under the circumstances to submit to a drugtest. Nevertheless, had Borrell been afforded the op-portunity to be heard, she could have presented herargument that “reasonable suspicion” did not exist tojustify the drug test request. And, had she been af-forded this opportunity, Borrell would have had oc-casion to demonstrate that a disciplinary dismissalfrom the NAP was not warranted because she did notviolate a rule or policy of the program. However, be-cause she was not given such an opportunity to beheard, Borrell was denied the “informal give-and-take” discussed in Goss and Horowitz.12 As such, thepre-dismissal procedures afforded Borrell did notprovide due process of law.

12 Because Borrell was not provided an “informal give-and-take”prior to her dismissal from the NAP, I will not address whethershe was entitled to heightened protections beyond those dis-cussed in Goss. See Pugel, 378 F.3d at 664 (“those cases consid-ering the adequacy of notice and hearing procedures in the con-text of graduate student deprivations have dealt with procedur-al requirements significantly more extensive than those de-scribed in Goss.”); see also Le, 379 F. App’x at 174-75(procedures afforded to student in connection with his dismissalfrom dental school which went beyond those described in Gosssatisfied the requirements of due process).

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In addition, Defendants contend that theBorrell’s due process rights were satisfied in thiscase based on procedures afforded and/or available toher after September 25, 2012. In particular, Dr.Ficca contends that the following post-terminationevents afforded Borrell due process: (1) her conversa-tion with Dr. Marande after learning of her dismissalfrom the NAP; (2) Borrell’s email letter to Dr. Ficcadated September 27, 2012, which requested an ap-peal of her termination from the NAP; (3) Dr. Ficca’sdiscussions with Dr. Marande in which they deter-mined that there was no appeal process for Borrell’sdismissal; and (4) Dr. Ficca’s October 19, 2012 letterto Borrell informing her that she could no longerprovide care at Geisinger. (Docs. 119, 12-13; 149, 20-22.) Additionally, Defendants also argue that“Borrell may not advance her procedural due processclaim because she failed to avail herself of process af-forded to her by the State’s Administrative [AgencyLaw].” (Doc. 117, 25-27 (citing 2 Pa. C.S.A. § 702).)Citing Alvin v. Suzuki, 227 F.3d 107, 116 (3d Cir.2000), Defendants assert that a due process violation“is not complete when the deprivation occurs; it isnot complete unless and until the state fails to pro-vide due process.” (Doc. 150, 22-23.) Thus, by not uti-lizing available state procedures, Defendants arguethat Borrell’s due process claim fails as a matter oflaw.

These arguments fail for the same reason. Inparticular, they both hinge on the premise that post-deprivation procedures are sufficient to satisfyBorrell’s procedural due process rights. But, theavailability of post-dismissal procedures is not anadequate substitute for constitutionally-mandatedpre-deprivation process. See, e.g., Valentine, 2014 WL3508257, at *7. And, according to the Goss Court, “as

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a general rule notice and hearing should precede re-moval of the student from school.” Goss, 419 U.S. at582, 95 S. Ct. 729.13 As one district court stated:“[i]mplicit in [school dismissal cases] is that post-dismissal procedure alone is not constitutionally suf-ficient.” Assenov v. Univ. of Utah, 553 F. Supp. 2d1319, 1328 (D. Utah 2008); see also Barnes v.Zaccari, 669 F.3d 1295, 1306 (11th Cir. 2012) (Gossestablishes that student was entitled to notice ofcharges and a hearing before his removal). Moreover,the case cited by Defendants recognizes that thestate’s provision of post-deprivation procedures doesnot satisfy the requirements of due process whenpre-deprivation procedures are constitutionallymandated. See Alvin, 227 F.3d at 120 (“if the Consti-tution requires pre-termination procedures, the mostthorough and fair post-termination hearing cannotundo the failure to provide such procedures.” (citingStana v. Sch. Dist. of Pittsburgh, 775 F.2d 122, 129(3d Cir. 1985) (indicating that following ClevelandBoard of Education v. Loudermill, 470 U.S. 532, 105S. Ct. 1487, 84 L. Ed. 2d 494 (1985), there can be norequirement to pursue post-deprivation remedieswhen pre-deprivation notice or hearing is requiredfor due process))); see also Stana, 775 F.2d at 130 (“ifthe governmental entity could have, but did not, pro-vide predeprivation procedures, a § 1983 action com-

13 The Goss Court recognized, however, that there are “recur-ring situations in which prior notice and hearing cannot be in-sisted upon. Students whose presence poses a continuing dan-ger to persons or property or an ongoing threat of disruptingthe academic process may be immediately removed from school.In such cases, the necessary notice and rudimentary hearingshould follow as soon as practicable.” Goss, 419 U.S. at 582, 95S. Ct. 729. It has not been advanced that Borrell’s case posedsuch a situation.

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plaining of the lack of procedural due process may bemaintained in federal court, notwithstanding theavailability of state judicial routes as well.”). Thus,because Borrell was entitled to pre-dismissal safe-guards, the post-deprivation procedures cited by De-fendants did not satisfy Borrell’s due process rights.

d. Geisinger is subject to liability forthe deprivation of Borrell’s dueprocess rights.

Next, Geisinger argues that even if Borrell wasdeprived of her due process rights, it is nonethelessentitled to summary judgment because it is not liablefor the constitutional violation at issue. Specifically,Geisinger contends that Borrell is impermissibly at-tempting to hold it liable for the acts of its employeeson a respondeat superior theory.

A private company, such as Geisinger, cannot beheld responsible pursuant to § 1983 for the acts of itsemployees under a theory of respondeat superior orvicarious liability. See Natale v. Camden Cnty. Corr.Facility, 318 F.3d 575, 583 (3d Cir. 2003) (citingMonell v. New York City Dept. of Soc. Servs., 436U.S. 658, 691, 98 S. Ct. 2018, 56 L. Ed. 2d 611(1978)). Instead, for Geisinger to be liable under §1983, Borrell must establish a Geisinger policy orcustom, and that the policy caused the constitutionalviolation alleged. See id. at 584 (citing Bd. of CntyComm’rs v. Brown, 520 U.S. 397, 404, 117 S. Ct.1382, 137 L. Ed. 2d 626 (1997)). A policy is made“when a decision maker possess[ing] final authorityto establish municipal policy with respect to the ac-tion issues a final proclamation, policy or edict.”Kneipp v. Tedder, 95 F.3d 1199, 1212 (3d Cir. 1996)(quoting Pembaur v. City of Cincinnati, 475 U.S. 469,481, 106 S. Ct. 1292, 89 L. Ed .2d 452 (1986) (plurali-

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ty opinion)). A municipality is liable for the torts ofits employees in one of three ways:

First, the municipality will be liable if itsemployee acted pursuant to a formal gov-ernment policy or a standard operating pro-cedure long accepted within the governmententity; second, liability will attach when theindividual has policy making authority ren-dering his or her behavior an act of officialgovernment policy; third, the municipalitywill be liable if an official with authority hasratified the unconstitutional actions of a sub-ordinate, rendering such behavior official forliability purposes.

McGreevy v. Stroup, 413 F.3d 359, 367 (3d Cir. 2005)(internal citations omitted).

In this case, Borrell does not argue that the Drugand Alcohol Policy is itself unconstitutional. Rather,Borrell argues that Geisinger is subject to liabilityunder § 1983 for the deprivation of her due processrights because: (1) Richer is Geisinger’s highest poli-cymaking official for terminating students from theNAP; and (2) Richer’s decision to terminate her fromthe NAP without due process of law was ratified byGeisinger. (Doc. 87, 22.) Conversely, Geisinger ar-gues that it is not liable under § 1983 because Richeris not a policymaker, Richer dismissed Borrell fromthe NAP pursuant to a policy that he did not create,and Borrell applies the incorrect standard for ratifi-cation. (Doc. 117, 27-29.)

The Supreme Court in Pembaur v. City of Cin-cinnati noted that “it is plain that municipal liabilitymay be imposed for a single decision by municipalpolicymakers under appropriate circumstances.”

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Pembaur, 475 U.S. 469, 480, 106 S. Ct. 1292, 89 L.Ed. 2d 452 (1986). Thus, “[i]f the decision to adopt [a]particular course of action is properly made by thegovernment’s authorized decisionmakers, it surelyrepresents an act of official government ‘policy’ asthat term is commonly understood.” Id. at 481, 106S. Ct. 1292. And, “where action is directed by thosewho establish government policy, the municipality isequally responsible whether that action is to be tak-en only once or to be taken repeatedly.” Id. But, thePembaur plurality emphasized that “[t]he fact that aparticular official- even a policymaking official- hasdiscretion in the exercise of a particular functiondoes not, without more, give rise to municipal liabil-ity based on an exercise of that discretion. The offi-cial must also be responsible for establishing finalgovernment policy respecting such activity before themunicipality can be held liable.” Id. at 481-83, 106 S.Ct. 1292 (plurality opinion) (internal citation omit-ted). By way of illustration, the plurality explained:

Thus, for example, the County Sheriff mayhave discretion to hire and fire employeeswithout also being the county official respon-sible for establishing county employment pol-icy. If this were the case, the Sheriff’s deci-sions respecting employment would not giverise to municipal liability, although similardecisions with respect to law enforcementpractices, over which the Sheriff is the offi-cial policymaker, would give rise to munici-pal liability. Instead, if county employmentpolicy was set by the Board of County Com-missioners, only that body’s decisions wouldprovide a basis for county liability. Thiswould be true even if the Board left the Sher-iff discretion to hire and fire employees and

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the Sheriff exercised that discretion in anunconstitutional manner; the decision to actunlawfully would not be a decision of theBoard. However, if the Board delegated itspower to establish final employment policy tothe Sheriff, the Sheriff’s decisions would rep-resent county policy and could give rise tomunicipal liability.

Id. at 483 n.12, 106 S. Ct. 1292 (plurality opinion).

Two years after the Court issued its decision inPembaur, the Supreme Court decided City of St.Louis v. Praprotnik, 485 U.S. 112, 108 S. Ct. 915, 99L. Ed. 2d 107 (1988) (plurality opinion). A pluralityin Praprotnik, citing Pembaur, emphasized that“[w]hen an official’s discretionary decisions are con-strained by policies not of that official’s making,those policies, rather than the subordinates depar-tures from them, are the act of the municipality.” Id.at 127, 108 S. Ct. 915 (emphasis in original); see alsoAndrews v. City of Phila., 895 F.2d 1469, 1481 (3dCir. 1990) (same).

Geisinger argues that this reasoning is applica-ble here, and that this case fits within the hypothet-ical example discussed by the Pembaur plurality.Specifically, Geisinger contends that it is undisputedthat its Drug and Alcohol Policy is set by its HumanResources Department and that Richer did not setthe Policy, nor does he have control over its contents.(Defs.’ SMF, ¶ 62; Plfs. CSF, ¶ 62.) Rather, GeisingerHuman Resources has “authority and responsibility”over the Drug and Alcohol Policy. (Hallick Decl., ¶16.) And, even though the record indicates that Rich-er “is the highest decision maker about terminationof students from the program,” (Lieberman Dep.,78:15-18), Richer was “bound by Geisinger’s drug pol-

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icy, which [he] did not create.” (Doc. 131, 21.)Geisinger thus reasons that Richer’s “decision to fol-low the Policy is not a basis for liability.” (Doc. 150,28.)

The fact that Richer did not set the Drug and Al-cohol Policy does not end the inquiry, however, be-cause “[a]n employee who lacks policymaking author-ity can still bind the municipality if a municipal poli-cymaker delegated power to the employee or ratifiedhis decision.” Kelly v. Borough of Carlisle, 622 F.3d248, 264 (3d Cir. 2010) (citing La Verdure v. Cnty. ofMontgomery, 324 F.3d 123, 125 (3d Cir. 2003)). Forexample, in Pembaur, the plurality noted that if thepolicymaker delegates “power to establish final em-ployment policy” to an official, then that official’s de-cisions would represent policy and “could give rise tomunicipal liability.” Pembaur, 475 U.S. at 483 n.12,106 S. Ct. 1292 (plurality opinion). However,“‘[s]imply going along with discretionary decisionsmade by one’s subordinates . . . is not a delegation tothem of the authority to make policy.’” Kelly, 622F.3d at 264 (quoting Praprotnik, 485 U.S. at 130, 108S. Ct. 915 (plurality opinion)). With respect to ratifi-cation, the Praprotnik plurality emphasized that:

[w]hen a subordinate’s decision is subject toreview by the municipality’s authorized poli-cymakers, they have retained the authorityto measure the official’s conduct for conform-ance with their policies. If the authorized pol-icymakers approve a subordinate’s decisionand the basis for it, their ratification wouldbe chargeable to the municipality becausetheir decision is final.

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Praprotnik, 485 U.S. at 127, 108 S. Ct. 915 (empha-sis in original); see also Kelly, 622 F.3d at 264; An-drews, 895 F.2d at 1481.

The evidence of record demonstrates that Rich-er’s decision to terminate Borrell from the NAPwithout due process of law was ratified byGeisinger’s policymakers. According to Hallick,Geisinger’s Human Resources Department “has au-thority and responsibility over the Drug & AlcoholPolicy.” (Hallick Decl., ¶ 16.) Hallick further indicat-ed that she was responsible for ensuring that “anymatters of significance in the NAP are handled con-sistently” with Geisinger’s policies. (Id. at ¶ 7.)Hallick and others working in the NAP “are to relyupon and seek guidance from GMC’s Human Re-sources Director when issues of significance arise sothat the proper process is followed and GMC’s poli-cies, procedures and practices are applied consistent-ly.” (Id. at ¶ 12.) With respect to Borrell’s termina-tion from the NAP, Hallick worked with Richer toensure that Geisinger’s “policies, practices, and pro-cedures were followed, Human Resources was con-sulted (which has authority and responsibility overthe Drug & Alcohol Policy), and this GMC issue wasaddressed consistent with system-wide application ofthe Drug & Alcohol Policy.” (Id. at ¶ 16.) In fact,Hallick testified: “[i]n applying GMC’s Drug & Alco-hol Policy to Ms. Borrell, Richer was in consultationwith and obtained approval from me as well as guid-ance from GMC’s Human Resource Director, actingon GMC’s behalf.” (Id. at ¶ 23.)

As such, based on the evidence submitted byGeisinger, the Human Resources Department, thebody with authority over the Drug and Alcohol Poli-cy, consulted with Richer to ensure that the decision

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to terminate Borrell from the NAP conformed toGeisinger’s policies. See Pembaur, 475 U.S. at 483n.12 (plurality opinion) (“if county employment policywas set by the Board of County Commissioners, onlythat body’s decisions would provide a basis for countyliability.”). The purpose of consulting with HumanResources was to ensure consistent system-wide ap-plication of the policy, and Richer obtained guidancein applying the Drug and Alcohol Policy to Borrellfrom Geisinger’s Human Resources Director. (HallickDecl., ¶¶ 16, 23.) In addition, Richer’s direct and onlysupervisor above him at Geisinger was Hallick,(Richer Dep., 37:10-21), and Richer obtained her “ap-proval” in applying the Drug and Alcohol Policy toBorrell. (Hallick Decl., ¶ 23.) Thus, as Richer’s appli-cation of the Drug and Alcohol Policy occurred withthe guidance and consultation of the Human Re-sources Department, in addition to the approval ofhis supervisor, Lieberman and Hallick measured his“conduct for conformance” with Geisinger’s policy.Kelly, 622 F.3d at 264. And, because Richer’s deci-sion to dismiss Borrell from the NAP without dueprocess of law was reviewed and approved by theHuman Resources Department and Hallick, and thebasis of her dismissal from the NAP- refusal to sub-mit to a drug test as required by the policy- was alsoapproved, Geisinger is liable under § 1983 pursuantto the reasoning in Praprotnik and Andrews. SeePraprotnik, 485 U.S. at 127, 108 S. Ct. 915 (pluralityopinion); Andrews, 895 F.2d at 1481 (“If the author-ized policymakers approve a subordinate’s decisionand the basis for it, their ratification would bechargeable to the municipality because their decisionis final.”).

Accordingly, in this case, Geisinger’s liability un-der § 1983 is not based on a finding that the policy in

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question is itself unconstitutional, as there has beenno suggestion here that the policy explicitly violatesa constitutional right when enforced. Nor isGeisinger subject to liability solely because Richer, ajoint Bloomsburg-Geisinger employee, applied thepolicy in an unconstitutional manner in dismissingBorrell from the NAP without due process of law. Ifthat were the case, liability would be impermissiblypremised on a theory of respondeat superior. Rather,as explained, Geisinger is liable here because its au-thorized policymakers with authority and responsi-bility over the policy ratified the decision to dismissBorrell from the NAP without the procedural safe-guards required by the Due Process Clause.

Geisinger’s written summary judgment submis-sions further reflect that it ratified Richer’s decisionto terminate Borrell without due process of law.Among other statements made by Geisinger in itssubmissions, it asserts that: (1) Geisinger “retainedauthority through Hallick to measure Richer’s con-duct for conformance with Geisinger’s policies,” (Doc.150, 28 (internal quotation and alteration omitted));(2) “Richer’s application of this policy was then sub-ject to review by both Susan Hallick and BrionLieberman,” (Doc. 117, 29); (3) Richer needed “to con-fer and consult” with Hallick and Lieberman regard-ing Borrell’s termination, (Id. at 12); (4) “Richer’s de-cisions required conferral with GMC’s Vice Presidentof Human Resources Brion Lieberman14 and ChiefNursing Officer Susan Hallick,” (Doc. 131, 21); and(5) “she [Hallick], along with Brion Lieberman, re-viewed Richer’s decision and approved it.” (Id. at 121

14 Lieberman testified that his position was as Human Re-sources Director. (Lieberman Dep., 5:8.)

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(emphasis added).) These statements are all in ac-cord with the standard for ratification discussed inPraprotnik and Andrews.

e. Richer is not entitled to a “goodfaith” defense.

Richer also contends that even if a constitutionalviolation occurred in this case, he is nonetheless en-titled to summary judgment pursuant to a “goodfaith defense.”15 The United States District Court forthe Eastern District of Pennsylvania has explainedthat:

[t]he foundation for the good faith defenselies in Lugar where the Court expressed con-cern for private individuals who innocentlymake use of seemingly valid state laws thatare subsequently held to be unconstitutional.The Court observed that such concerns wouldbest be alleviated by creating a good faith de-fense, but it declined to rule definitely on theavailability of such a defense.

Egervary v. Rooney, No. 96-3039, 2000 WL 1160720,at *6 (E.D. Pa. Aug. 15, 2000) (O’Neill, J.) (internalalterations omitted) (quoting Lugar v. EdmondsonOil, Inc., 457 U.S. 922, 942 n.23, 102 S. Ct. 2744, 73L. Ed. 2d 482 (1982)). Following Luger, in Jordan v.Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250,1275-78 (3d Cir. 1994), the Third Circuit held thatprivate individuals invoking state attachment laws,which are thereafter found to be unconstitutional,can raise an affirmative defense of good faith. In that

15 Richer did not seek summary judgment on the basis of quali-fied immunity, nor did he oppose Borrell’s motion on qualifiedimmunity grounds.

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regard, the Jordan court ruled that “private defen-dants should not be held liable under § 1983 absent ashowing of malice and evidence that they eitherknew or should have known of the statute’s constitu-tional infirmity,” and malice, in this context, meant a“creditor’s subjective appreciation that its act de-prives the debtor of his constitutional right to dueprocess.” Id. at 1276 (citation and quotation omitted).

Since the Third Circuit decided Jordan, courtshave expressed doubt as to its applicability outsidethe context of state attachment laws. See, e.g., Pear-son v. City of Phila., No. 97-1298, 1998 WL 721076,at *2 (E.D. Pa. Oct. 15, 1998) (“To import into EighthAmendment jurisdprudence a defense predicated onthe elements of a common law claim for a wrongfulseizure of property and the reasonableness of reli-ance on a facially valid statute is a leap. The goodfaith defense discussed in Jordan has yet to be af-forded to other than private individuals who in con-cert with state officials invoke state law in pursuit ofa private objective.”). And, a number of districtcourts in this Circuit have concluded that, assuminga good faith defense is available, summary judgmenton that defense is not appropriate because it involvesinquiry into an individual defendant’s state of mind.See, e.g., Morgan-Mapp v. George W. Hill Corr. Facil-ity, No. 07-2949, 2008 WL 4211699, at *15 (E.D. Pa.Sept. 12, 2008) (“Without deciding whether a ‘goodfaith’ defense is available in this context, it is clearthat ‘good faith’ requires a subjective inquiry into theIndividual Prison Defendants’ state of mind, makingsummary judgment on that defense inappropriate.”);Wolfe v. Horn, 130 F. Supp. 2d 648, 659 (E.D. Pa.2001) (“assuming the ‘good-faith’ defense applies inthis context, the defendants’ subjective state of mindcannot be evaluated without weighing the evidence

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and determining credibility.”); Egervary, 2000 WL1160720, at *6 (denying summary judgment on thegood faith defense but allowing defendants to assertthe defense at trial); but see Doby v. DeCrescenzo, No.94-3991, 1996 WL 510095, at *21 (E.D. Pa. Sept. 9,1996) (granting defendants’ motion for summaryjudgment on § 1983 claims against private individualdefendant based on good faith defense).

Assuming that the good faith defense articulatedby the Third Circuit in Jordan applies to claims suchas those brought in this action, that defense is notapplicable in this case. As explained in Jordan, “goodfaith is a defense available to private persons whoact under color of law.” Jordan, 20 F.3d at 1276. Be-cause Richer was jointly employed by both Geisingerand Bloomsburg, and in the absence of authority thatan individual jointly employed by the state and aprivate entity can avail himself or herself of the goodfaith defense discussed in Jordan, that defense is notavailable in this case. Rather, Richer’s defense onimmunity grounds would be governed by the stand-ard for qualified immunity. Cf. Filarsky v. Delia, - - -U.S. - - -, 132 S. Ct. 1657, 1660-61, 1665, 182 L. Ed.2d 662 (2012) (attorney retained to assist in conduct-ing official investigation of wrongdoing was entitledto qualified immunity even though he worked for“the government on something other than a perma-nent or full-time basis” because “immunity under §1983 should not vary depending on whether an indi-vidual working for the government does so as a full-time employee, or on some other basis.”). However,since Richer did not raise qualified immunity in hissummary judgment submissions, I will refrain fromaddressing whether Richer is entitled to qualifiedimmunity in this case.

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f. Dr. Ficca is not entitled to qualifiedimmunity.

Dr. Ficca contends that even if her conduct de-prived Borrell of her constitutional rights, she shouldbe afforded qualified immunity. Qualified immunityapplies to procedural due process claims. See, e.g.,Schmidt v. Creedon, 639 F.3d 587, 598-99 (3d Cir.2011).

“The doctrine of qualified immunity protects gov-ernment officials ‘from liability for civil damages in-sofar as their conduct does not violate clearly estab-lished statutory or constitutional rights of which areasonable person would have known.’” Pearson v.Callahan, 555 U.S. 223, 129 S. Ct. 808, 815, 172 L.Ed. 2d 565 (2009) (quoting Harlow v. Fitzgerald, 457U.S. 800, 818, 102 S. Ct. 2727, 73 L. Ed. 2d 396(1982)). “A defendant has the burden to establishthat he is entitled to qualified immunity.” Kopec v.Tate, 361 F.3d 772, 776 (3d Cir. 2004). The SupremeCourt has established a two-part analysis that gov-erns whether an official is entitled to qualified im-munity. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.2151, 150 L. Ed. 2d 272 (2001). “Thus, we ask: (1)whether the facts alleged by the plaintiff show theviolation of a constitutional right; and (2) whetherthe right at issue was clearly established at the timeof the alleged misconduct.” Kelly v. Borough of Car-lisle, 622 F.3d 248, 253 (3d Cir. 2010). Courts mayaddress the two Saucier prongs in any order, at theirdiscretion. Pearson, 555 U.S. at 236, 129 S. Ct. 808.

The first prong of Saucier is satisfied becauseBorrell has demonstrated that Dr. Ficca deprived ofher of a property interest in the continuation of hercourse of study without due process of law. Accord-ingly, only Saucier’s second prong is at issue.

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Under the second prong, a legal right is clearlyestablished if “its contours [are] sufficiently clearthat a reasonable official would understand thatwhat he is doing violates that right.” Anderson v.Creighton, 483 U.S. 635, 640, 107 S. Ct. 3034, 97 L.Ed. 2d 523 (1987); Doe v. Delie, 257 F.3d 309, 318 (3dCir. 2001) (“The issue is whether, given the estab-lished law and the information available to Defen-dants, reasonable prison officials in Defendants’ posi-tions could have believed that their conduct was law-ful.”). The inquiry under the clearly establishedprong “focuses on the official’s actual situation, [and]the analysis ‘must be undertaken in light of the spe-cific context of the case, not as a general proposition. . . .’” Montanez v. Thompson, 603 F.3d 243, 251 (3dCir. 2010) (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151).

A constitutional or statutory duty, however, “isnot clearly established simply because of the exist-ence of a broad imperative like the one against ‘un-reasonable . . . seizures,’” Schneyder v. Smith, 653F.3d 313, 329 (3d Cir. 2011), or the deprivation oflife, liberty, or property without due process of law.See also Wilson v. Layne, 526 U.S. 603, 615, 119 S.Ct. 1692, 143 L. Ed. 2d 818 (1999) (“It could plausi-bly be asserted that any violation of the FourthAmendment is ‘clearly established,’ since it is clearlyestablished that the protections of the FourthAmendment apply to the actions of police. . . . [T]heright allegedly violated must be defined at the ap-propriate level of specificity before a court can de-termine if it was clearly established. In this case, theappropriate question is the objective inquiry whethera reasonable officer could have believed that bringingmembers of the media into a home during the execu-tion of an arrest warrant was lawful, in light of clear-

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ly established law and the information the officerspossessed.”). “‘If the test of clearly established lawwere to be applied at this level of generality, it wouldbear no relationship to the ‘objective legal reason-ableness’ that is the touchstone of Harlow.’”Schneyder, 653 F.3d at 329 (quoting Anderson, 483U.S. at 639, 107 S. Ct. 3034). “Thus, the usual rule isthat ‘the right the official is alleged to have violatedmust have been clearly established in a more partic-ularized, and hence, more relevant, sense . . . .’” Id.(quoting Anderson, 483 U.S. at 640, 107 S. Ct. 3034).As such, “the court must define the right allegedlyviolated at the appropriate level of specificity.” Sharpv. Johnson, 669 F.3d 144, 159 (3d Cir. 2012).

Nevertheless, while the Supreme Court “appearsto require a relatively high degree of specificity be-fore a rule can be called ‘clearly established,’ theCourt was at pains to emphasize that ‘[t]his is not tosay that an official action is protected by qualifiedimmunity unless the very action in question has pre-viously been held unlawful, but it is to say that inthe light of pre-existing law the unlawfulness mustbe apparent.” Schneyder, 653 F.3d at 329 (quotingAnderson, 483 U.S. at 640, 107 S. Ct. 3034 (citationsomitted)). Rephrased, “there does not have to be pre-cise factual correspondence between the case at issueand a previous case in order for a right to be clearlyestablished . . . .” Kopec v. Tate, 361 F.3d 772, 778(3d Cir. 2004) (quotations omitted). Accordingly, “of-ficials can still be on notice that their conduct vio-lates established law even in novel factual circum-stances, as long as the law gave the defendant [offi-cial] fair warning that his conduct was unconstitu-tional.” Kelly v. Borough of Carlisle, 622 F.3d 248,259-60 (3d Cir. 2010) (citations and quotation omit-ted). In determining whether a right was clearly es-

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tablished, the Third Circuit has emphasized that theapplicable law must be reviewed “with particular at-tention to the dates the leading opinions were an-nounced.” Assaf v. Fields, 178 F.3d 170, 174 (3d Cir.1999).

In this case, it was clearly established well beforeSeptember 25, 2012 that, under Pennsylvania law, agraduate student has a property interest in the con-tinuation of his or her course of study. See, e.g., Coul-ter, 2010 WL 1816632, at *2; Manning, 2004 WL3019230, at *8; Stoller, 562 F. Supp. at 412; Ross,445 F. Supp. at 153. Furthermore, it was clearly es-tablished by 2012 that a graduate student’s dismis-sal, be it disciplinary or academic, must be accompa-nied by procedural safeguards. See Horowitz, 435U.S. 78, 98 S. Ct. 948. And, with regard to discipli-nary dismissals, it was established long before Sep-tember 25, 2012 that, at a minimum, a student wasentitled to “‘be given oral or written notice of thecharges against him and, if he denies them, an ex-planation of the evidence the authorities have and anopportunity to present his side of the story.’” Id. at85, 98 S. Ct. 948 (quoting Goss, 419 U.S. 565, 95 S.Ct. 729).

Nevertheless, Dr. Ficca contends that a reason-able official in her position would not have knownthat her actions were in violation of Borrell’s dueprocess rights. (Doc. 119, 2123.) According to Dr.Ficca, “[t]he decision to dismiss plaintiff from theNAP resulted from a compilation of issues regardingher termination from GMC, who provided the re-quired clinical portion of the NAP.” (Id. at 22.) As aresult, since Borrell could not complete the clinicalportion of the program, she was dismissed from theNAP. (Id. at 23.) Dr. Ficca thus concludes that be-

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cause the constitutional violation that occurred “re-sulted from a combination of issues from two sepa-rate entities,” reasonable officials would not haverecognized that they were violating Borrell’s consti-tutional rights. (Id.)

Dr. Ficca is not entitled to qualified immunity.Geisinger and Bloomsburg’s collaboration in the NAPdoes not prevent a finding that Dr. Ficca had fairwarning that her conduct was unconstitutional. Inparticular, a reasonable official in Dr. Ficca’s posi-tion, i.e., a chairperson of a department at a stateuniversity, would have recognized, using her ownwords, that a “non-academic” dismissal of a studentfrom a graduate program at a state university impli-cated the Due Process Clause. Furthermore, a rea-sonable official would have also understood that pri-or to Borrell’s disciplinary dismissal from the pro-gram, she was entitled, at a minimum, to notice ofthe charges against her, an explanation of evidenceunderlying the charges, and an opportunity to pre-sent her side of the story. Yet, none of these protec-tions were afforded to Borrell. In light of pre-existinglaw, the unlawfulness of a disciplinary dismissal of astudent from a graduate program without any of theattendant procedural safeguards would have beenapparent to a reasonable official. Qualified immunityis not warranted in these circumstances.

g. Summary judgment on Borrell’sdamages claims is not warranted.

As a final matter, Richer and Geisinger arguethat Borrell’s remedy in this case is limited to rein-statement to the NAP. Thus, they argue that theyare entitled to summary judgment on all of Borrell’sdamages claims except for reinstatement. (Doc. 117,31-33.) In view of the evidence in the record, sum-

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mary judgment on this issue is not warranted. Theremedies available to Borrell for Defendants’ depri-vation of her procedural due process rights will bedetermined prior to or at the time of trial.

IV. Conclusion

For the above stated reasons, Borrell’s motion forpartial summary judgment will be granted in partand denied in part. Borrell’s motion for summaryjudgment as to liability on the property interestclaim will be granted against all Defendants.Borrell’s motion for partial summary judgment willbe denied in all other respects.

Dr. Ficca’s motion for summary judgment will begranted in part and denied in part. Summary judg-ment will be granted in favor of Dr. Ficca on Borrell’sstigma-plus and equal protection claims. In all otherrespects, Dr. Ficca’s motion will be denied.

Geisinger and Richer’s motion for summaryjudgment will be granted in part and denied in part.Their motion will be granted as to Borrell’s stigma-plus and equal protection claims. Their motion forsummary judgment will be denied in all other re-spects.

An appropriate order follows.

October 21, 2014 /s/ A. Richard CaputoDate A. Richard Caputo

United States District Judge

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APPENDIX E

IN THE UNITED STATES DISTRICT COURTFOR THE MIDDLE DISTRICT OF

PENNSYLVANIA

ANGELA BORRELL,

Plaintiff,

v.

BLOOMSBURG UNI-VERSITY, GEISINGERMEDICAL CENTER, andARTHUR F. RICHER andMICHELLE FICCA intheir individual and offi-cial capacities,

Defendants.

CIVIL ACTION NO.3:12-CV-2123

(JUDGE CAPUTO)

ORDER

NOW, this 21st day of October, 2014, IT ISHEREBY ORDERED that:

(1) Plaintiff Angela Borrell’s Motion forPartial Summary Judgment (Doc. 86) isGRANTED in part and DENIED inpart.

(A) Angela Borrell’s motion for par-tial summary judgment as to lia-bility on her procedural due pro-cess property interest claimagainst Defendants MichelleFicca, Arthur Richer, andGeisinger Medical Center isGRANTED.

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(B) Angela Borrell’s motion is DE-NIED in all other respects.

(2) Defendant Michelle Ficca’s Motion forSummary Judgment (Doc. 114) isGRANTED in part and DENIED inpart.

(A) Michelle Ficca’s motion for sum-mary judgment on AngelaBorrell’s procedural due processliberty interest and equal protec-tion claims is GRANTED.

(B) Michelle Ficca’s motion is DE-NIED in all other respects.

(3) Defendants Geisinger Medical Centerand Arthur Richer’s Motion for Sum-mary Judgment (Doc. 116) is GRANT-ED in part and DENIED in part.

(A) Geisinger Medical Center and Ar-thur Richer’s motion for sum-mary judgment on AngelaBorrell’s procedural due processliberty interest and equal protec-tion claims is GRANTED.

(B) Geisinger Medical Center and Ar-thur Richer’s motion is DENIEDin all other respects.

/s/ A. Richard CaputoA. Richard CaputoUnited States DistrictJudge

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APPENDIX F

PRECEDENTIAL

UNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUIT

____________

Nos. 15-2823, 16-3837, 16-3959____________

ANGELA BORRELL,Appellant in 16-3837

v.

BLOOMSBURG UNIVERSITY

ARTHUR F. RICHER; GEISINGER MEDICALCENTER,

Appellants in 15-2823

MICHELLE FICCA,Appellant in 16-3959

____________

SUR PETITION FOR REHEARING

Present: SMITH, Chief Judge, MCKEE, AMBRO,CHAGARES, JORDAN, HARDIMAN, GREEN-

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AWAY, JR., VANASKIE, SHWARTZ, KRAUSE,RESTREPO, ROTH, and FISHER,1 Circuit Judges.

The petition for rehearing filed by appellee/cross-appellant in the above-entitled case having beensubmitted to the judges who participated in the deci-sion of this Court and to all the other available cir-cuit judges of the circuit in regular active service,and no judge who concurred in the decision havingasked for rehearing, and a majority of the judges ofthe circuit in regular service not having voted for re-hearing, the petition for rehearing by the panel andthe Court en banc, is denied.

BY THE COURT,

s/ Thomas M. HardimanCircuit Judge

Dated: November 9, 2017

cc: All Counsel of Record

1 Judge Roth’s and Judge Fisher’s votes are limited to panel re-hearing.

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APPENDIX G

COLLABORATION AGREEMENTFOR NURSE ANESTHESIA EDUCATION

THIS AGREEMENT, is by and betweenBLOOMSBURG UNIVERSITY OF PENNSYL-VANIA (hereinafter referred to as “University”)(EIN 23-2738930), an educational institution of theState System of Higher Education, Commonwealth ofPennsylvania, GEISINGER MEDICAL CENTER(EIN: 24-0795959) GEISINGER WYOMING VAL-LEY MEDICAL CENTER (EIN: 23-1996150),GEISINGER SOUTH WILKES-BARRE (EIN: 20-3152743)and GEISINGER CLINIC (EIN: 23-6291113)(hereinafter collectively referred to as“Geisinger”).

WHEREAS, University is an educational insti-tution, provides a Master of Science (MS) Degree, ac-credited by the Commission of Collegiate NursingEducation, in the area of nursing for graduates of ac-credited programs, and is equipped with the facilitiesand professional staff necessary to support the Aca-demic Training portion of the Program; and

WHEREAS, Geisinger Medical Center,Geisinger Wyoming Valley Medical Center andGeisinger South Wilkes-Barre are non-profit hospi-tals duly organized and existing under the laws ofthe Commonwealth of Pennsylvania and areequipped with the facilities and professional staffnecessary to support the Clinical Training portion ofthe Program; and

WHEREAS, Geisinger Clinic is a non-profit mul-ti-specialty physician group practice duly organizedand existing under the laws of the Commonwealth of

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Pennsylvania, provides a Certificate in the area ofnurse anesthesia for graduates of clinical programs,and is equipped with the facilities and professionalstaff necessary to support the Clinical Training por-tion of the Program; and

WHEREAS, University wishes to collaboratewith Geisinger to support the Academic Trainingportion of the Program and provide the Program ed-ucational expertise and facilities; and

WHEREAS, Geisinger wishes to collaboratewith University to support the Clinical Training por-tion of the Program and provide the Program clinicalexpertise and facilities.

NOW THEREFORE, in consideration of themutual covenants contained herein and intending tobe legally bound, the parties hereto agree as follows:

SECTION 1. DEFINITIONS

1.1 “Academic Training” shall mean the academiceducation in nurse anesthesia that Studentsreceive at University.

1.2 “Clinical Training” shall mean clinical educa-tion in nurse anesthesia that Students receiveat Geisinger.

1.3 “Program” shall mean the collaborative nurseanesthesia program in which Students receiveAcademic Training at University leading to aMS Degree and Clinical Training at Geisingerleading to a Certificate.

1.4 “Program Director” shall mean the individualinterviewed, approved and employed by bothUniversity and Geisinger to oversee the Pro-gram and serve as the liaison betweenGeisinger and University relative to the Pro-

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gram. As an employee of both Geisinger andUniversity, Program Director shall be entitledto any benefits or entitlements associated withsuch employment with each party in accord-ance with each party’s policies. University andGeisinger shall each be responsible for payingany sums for income tax, unemployment in-surance, social security, or any other withhold-ing pursuant to any law or requirement of anygovernmental body.

1.5 “Student” shall mean an individual enrolled inthe nursing MS Degree curriculum at Univer-sity and selected to participate in the Pro-gram.

SECTION 2. DUTIES AND RESPONSIBILI-TIES OF THE PARTIES

2.1 Upon successful completion of the ClinicalTraining portion of the Program, Geisingerwill provide a Certificate of Completion toStudents that will count towards completion ofa MS Degree in nursing.

University will offer a MS Degree in nursingto Students who successfully complete theProgram.

2.2 Program credits and degree requirements willbe determined based on accreditation stand-ards. Both parties shall assist with meeting allof the criteria necessary for accreditation asrelated to the Pennsylvania Department ofNursing overall accreditation standards forgraduate education based on the Commissionon Collegiate Nursing Education (CCNE) andthe Standards for Accreditation of Nurse Anes-thesia Educational Programs of the Council on

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Accreditation of Nurse Anesthesia EducationalPrograms (COA).

Both parties shall develop a joint AdmissionsCommittee to finalize admission criteria andrecommend admission of Students into theProgram, which shall consist of the ProgramDirector, Geisinger’s designated CRNA Assis-tant Program Director, University Depart-ment of Nursing Graduate Program Coordina-tor, Chairperson of University’s Department ofNursing, and three other representatives fromeach party.

Both parties shall designate at least three (3)representatives to serve on an advisory councilfor the program. The advisory council shall aidimplementation of this Agreement and helpresolve any problems or issues that mightarise.

Both parties shall establish and mutuallyagree upon the number of Students that willbe allowed to participate in the Program foreach class. The Program for each Student willbe approximately thirty-three (33) months induration, with approximately twenty-four (24)to twenty-five (25) months dedicated to theClinical Training portion of the Program.

Both parties shall cooperatively work togetherto submit a federal expansion grant for theProgram. Any federal grant shall be used toenhance the Program as mutually agreed uponby the parties and/or as stipulated by the gov-ernment.

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Both parties shall develop and approve thecurricula for Students while they are partici-pating in Clinical Training at Geisinger.

Both parties shall develop guidelines for theClinical Training portion of the Program withincorporation into University’s Department ofNursing Graduate Student Handbook andbased on University academic policies.

2.3 University will make the core courses requiredunder the Program available to Students online. The Clinical Training required under theProgram will be conducted on-site at aGeisinger facility.

2.4 University shall be responsible for the aca-demic administration, progression, and gradu-ation of all Students, similar to other Univer-sity students.

University shall be responsible for evaluationof Students and academic courses based onUniversity’s policies and procedures. Geisingershall complete a Clinical Training evaluationfor all Students participating in the ClinicalTraining portion of the Program.

Both parties shall develop a process for shar-ing academic Student records and other datafor accreditation purposes. University shallmaintain the official student records and tran-scripts including a copy of the final ClinicalTraining evaluation.

Subject to the terms of this Agreement,Geisinger shall have sole authority and controlover all aspects of Clinical Training providedto Students pursuant to this Agreement in-

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cluding, without limitation, designation of pa-tients and facilities.

2.5 University shall develop a state-of-the-artnursing simulated learning laboratory to beutilized by Students.

2.6 Both parties shall promote and market theProgram. Promotional and marketing materi-als shall be reviewed and approved by bothparties. Further, each party shall pay fiftypercent (50%) of the expenses related to suchpromotional/marketing materials and services.

2.7 Geisinger shall provide emergency health careto Students if necessary while Students areparticipating in the Clinical Training portionof the Program. University agrees to advisethe Students that Students will bear the costof the same.

2.8 University agrees to advise Students thatStudents will, while participating in the Clini-cal Training portion of the Program, be ex-pected to adhere to all applicable policies andstandards of Geisinger including, but not lim-ited to, the following:

A. Geisinger’s Code of Conduct, which is in-corporated into this Agreement by refer-ence;

B. Geisinger’s Drug and Alcohol Policy,which is incorporated into this Agreementby reference;

C. Students must complete a safety educa-tion course, HIPAA training course and/orother training required by Geisinger on-

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site at Geisinger prior to performing Clini-cal Training duties under the Program;

D. Students must pass a drug screen ac-ceptable to Geisinger and must furtherprovide Geisinger with proof of such drugscreen prior to performing Clinical Train-ing duties under the Program;

E. Students must obtain a backgroundscreen, which certifies that the Studenthas no criminal history, in accordancewith Geisinger standards, and must fur-ther provide Geisinger with proof of suchbackground screen prior to performingClinical Training duties under the Pro-gram; and

F. Prior to Students performing ClinicalTraining duties under the Program and inaccordance with Geisinger standards,Students must provide Geisinger withproof of having obtained testing and/or in-oculation for communicable diseases spe-cifically (1) Rubeola, (2) Mumps, (3) Rubel-la, (4) Varicella, (5) Tuberculosis Test, (6)Hepatitis B [or declination), (7) Tetanus,and (8) any other test/inoculation requiredby Geisinger.

SECTION 3. HIPAA

University agrees to advise Students that they willbe exposed to protected health information (“PHI”) asdefined in the Health Insurance and Portability andAccountability Act of 1996 (“HIPAA”) and, that suchPHI is confidential and that Students may not accessor disclose PHI when there is not a need to know orto pass on such information. University shall further

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advise Students that no PHI or individually identifi-able health information to which such Student is ex-posed shall be removed in any form (including, butnot limited to, photocopies, reports, computers, palmpilots, or diskettes) from Geisinger premises.

SECTION 4. SECURITY AGREEMENT

University acknowledges that Students may have ac-cess to Geisinger’s software programs as part of theirClinical Training and related to such access may re-ceive password(s) and user id(s) from Geisinger. Dueto the confidential nature of Geisinger’s informationand in the event Student receives password(s) andid(s), University agrees to sign a Security Agree-ment, which is attached hereto as Exhibit A and in-corporated herein. Further, University agrees to no-tify Students of the obligations of the SecurityAgreement.

SECTION 5. COMPENSATION/PAYMENTTERMS

5.1 Compensation. University shall levy and col-lect tuition and fees from Students at the cur-rent established rates of University for eachcredit hour in which the Student is participat-ing in the Clinical Training portion of the Pro-gram.

University shall pay Geisinger, at the begin-ning of each semester, at the rate of 50% of thebilled tuition and related fees.

University shall hire the Program Director asa full-time tenure track graduate facultymember of the Department of Nursing. As afull-time tenure track faculty member of theDepartment of Nursing, the Program Director

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would have all of the faculty rights and privi-leges, coupled with the direct responsibility forpresenting changes to the Clinical Trainingportion of the Program to University’s De-partment of Nursing Graduate Council, Facul-ty Assembly and University governance struc-ture.

In the event a Student does not complete acourse and in accordance with University poli-cies/procedures, Geisinger will refund Univer-sity an amount equal to 50% of the applicableStudent refund. During the term of thisAgreement, University will provide a copy ofthe applicable refund policies/procedures toGeisinger as well as any changes made to suchpolicies/procedures.

5.2 Payment Terms. Payment shall be made pay-able to Geisinger Clinic and remitted to: Ar-thur F. Richer, Department of Anesthesiology,Geisinger Medical Center, 100 North AcademyAvenue, Danville, PA 17822-2025.

SECTION 6. INSURANCE

6.1 Student Insurance. University will requireStudents to carry and maintain professionalliability insurance at Student’s own expense inthe minimum amount of $1,000,000 for eachoccurrence and $3,000,000 aggregate, coveringall acts and activities undertaken pursuant tothis Agreement as a condition of participationin the Clinical Training portion of the Pro-gram. University will require Students that,as a further condition of participation, Stu-dents must (i) notify Geisinger ten (10) days’prior to the cancellation or non-renewal of

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such insurance, (ii) provide evidence of suchinsurance to Geisinger immediately upon re-quest by Geisinger and (iii) notify Geisingerimmediately if the aggregate coverage is im-paired more than fifty percent (50%).

6.2 University Insurance. Geisinger understandsthat University, as an Agency of the Com-monwealth, is prohibited from purchasing in-surance. As a public and state university,there is no statutory authority to purchase in-surance and it does not possess insurance doc-umentation. Instead, it participates in theCommonwealth’s Tort Claims Self-Insuranceprogram administered. by the Bureau of Riskand Management of the Pennsylvania De-partment of General Services. This programcovers Commonwealth/University-ownedproperty, employees and officials acting withinthe scope of their employment, and claimsarising out of University’s performance underthis Agreement, subject to the provisions ofthe Torts Claims Act, 42 Pa. C.S.A. 8521, etseq.

SECTION 7. LIABILITY

Neither of the parties hereto shall assume any liabil-ities to each other. As to liability to each other ordeath to persons, or damages to property, the partiesdo not waive any defense as a result of entering intothis Agreement. This provision shall not be con-strued to limit the Commonwealth’s rights, obliga-tions, liabilities, claims or defenses which arise as amatter of law pursuant to any provisions of thisAgreement. This provision shall not be construed tolimit the sovereign immunity of the Commonwealth

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or of the State System of Higher Education or theUniversity.

SECTION 8. TERM AND TERMINATION.

8.1 Term. This Agreement shall be effective uponsignature by all parties hereto and shall con-tinue in effect for five years from the effectivedate or until terminated by either party in ac-cordance with the terms of this Agreement.

8.2 Termination.

A. No Cause. Either party may terminatethis Agreement for any reason with suffi-cient notice that provides for currently en-rolled Students to complete the require-ments of the Program.

B. For Cause. Should either party fail to per-form any of the material covenants, condi-tions, and agreements herein contained,and continue such failure without cure fora period of thirty (30) days after receipt ofwritten notice from the aggrieved partyspecifying the nature of such breach, theaggrieved party shall have the right toterminate this Agreement immediatelyupon written notice to the non-aggrievedparty. In the event the non-aggrieved par-ty remedies such breach within the thirty(30)-day cure period provided herein andeffects a breach of the same nature againduring the term of this Agreement, thenthe aggrieved party shall have the right toterminate this Agreement immediatelyupon written notice.

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C. Student Exclusion. Geisinger may, at anytime, exclude a Student from participationin the Clinical Training if (I) the Student’sperformance is unsatisfactory toGeisinger; (ii) the Student fails to complywith applicable policies and standards ofGeisinger, or (iii) the Student’s health sta-tus may prevent attendance and success-ful completion of the Clinical Trainingportion of the Program. Geisinger will no-tify University in the event a Student isexcluded.

SECTION 9. MISCELLANEOUS

9.1 Assignment. This Agreement may not be as-signed by any party without the prior writtenconsent of the other parties unless (i) other-wise provided for in this Agreement or (ii) as-signed to a corporation controlled by, in con-trol of, or under common control with the as-signing party. In the event of (ii) above, thirty-(30) days’ prior written notice of said assign-ment must be provided to the non-assigningparties.

9.2 Certification Regarding Debarment. The par-ties certify, to the best of their knowledge andbelief, that the parties and/or any of theirPrincipals are not presently debarred, sus-pended, or declared ineligible for the award ofcontracts by any federal agency. The partiesfurther certify that they are not disqualifiedfor violations listed in Title 42 of the UnitedStates Code. “Principals,” for the purposes ofthis certification, means officers, directors,owners, partners, and persons having primarymanagement or supervisory responsibilities

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within a business entity (e.g., general manag-er, plant manager, head of a subsidiary, divi-sion, or business segment, and similar posi-tions). The parties shall provide immediatewritten notice to the other parties if, at anytime prior to the execution of or during theterm of this Agreement, any party learns thatits certification was erroneous when submittedor has become erroneous by reason of changedcircumstances, The certification in this provi-sion is a material representation of fact uponwhich reliance was placed when entering intothis Agreement. Notwithstanding any provi-sion to the contrary in this Agreement, if it islater determined that any party knowinglyrendered an erroneous certification, in addi-tion to other remedies available to the otherparties, the other parties may terminate thisAgreement for default.

9.3 Compliance and Severability. During the termof this Agreement, the parties agree each willcomply with any and all laws, rules, regula-tions, and licensing requirements that are nowor hereafter promulgated by any local, state,and federal governmental authority or agencythat governs or applies to their respective du-ties and obligations hereunder and with anyand all rules and/or standards that are now orhereafter promulgated by any accrediting oradministrative body that governs or applies totheir respective duties and obligations here-under (the “Applicable Laws and Standards”).The Applicable Laws and Standards shall in-clude, but not be limited to, the Health Insur-ance Portability and Accountability Act of1996 (“HIPAA”), the requirements of the De-

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partment of Health and Human Services(“DHHS”), Joint Commission on the Accredita-tion of Healthcare Organizations (“JCAHO”),the National Committee on Quality Assurance(“NCQA”), and the Beck Notice (29 CFR part470), as applicable.

In the event any provision of this Agreementis rendered invalid or unenforceable by an Actof Congress, by the Pennsylvania Legislature,or by any regulation duly promulgated by of-ficers of the United States or the Common-wealth of Pennsylvania acting in accordancewith law, or declared null and void by anycourt of competent jurisdiction, the partiesshall exercise their best efforts to renegotiatethe Agreement to comply with the require-ments of law, amending the Agreement to themutual satisfaction of the parties and in ac-cordance with the other provisions containedin this Agreement. If the parties fail to reachsuch an accommodation after ninety (90) days’following a written request by either of theparties to discuss such an accommodation,then any party may terminate this Agreementupon thirty (30) days’ written notice, withoutfurther obligation or penalty, financial or oth-erwise, to the other parties.

9.4 Entire Agreement/Amendment/Multiple Orig-inals. This Agreement, together with any at-tachments or exhibits, sets forth the entireAgreement among the parties with respect tothe subject matter hereof. Any prior purchaseorders, agreements, promises, negotiations, orrepresentations, whether oral or written, notexpressly set forth in this Agreement are of no

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force or effect. This Agreement may be execut-ed in several counterparts, each of which,when so executed, shall be deemed to be anoriginal and such counterparts shall, together,constitute and be one and the same instru-ment. This Agreement shall be executed inmultiple originals, one (1) for each of the par-ties hereto. Except as otherwise expresslystated herein, this Agreement may not beamended except by a writing signed by bothparties.

9.5 Governing Law. This Agreement is deemed tohave been made and will be construed and in-terpreted in accordance with the laws of theCommonwealth of Pennsylvania and the par-ties agree to the jurisdiction of the Common-wealth of Pennsylvania.

9.6 Headings. The section headings in thisAgreement are solely for reference purposes.

9.7 Independent Entities. None of the provisionsof this Agreement are intended to create norshall be deemed or construed to create any re-lationship between the parties other than thatof independent entities contracting with eachother solely for the purpose of effecting theprovisions of this Agreement. No party or anyof its employees or agents will be construed tobe the agent, the employer, or representativeof the other party. No party has any express orimplied rights nor authority to assume or cre-ate any obligation or responsibility on behalfof or in the name of the other parties, exceptas may otherwise be set forth in this Agree-ment.

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9.8 Nondiscrimination. The parties agree that infulfilling their respective obligations and du-ties under this Agreement, they shall not dis-criminate against any individual or group onthe basis of race, religion, age, sex, sexual ori-entation, disability or national origin.

9.9 Non-Exclusivity. Each party hereto shall befree to enter into other agreements, such asthis Agreement, with other parties, as eachdeems appropriate for its respective manner ofbusiness.

9.10 Notices. All notices and communications relat-ed to this Agreement must be in writing andwill be deemed given (i) when personally de-livered, (ii) upon confirmation of a facsimiletransmittal, or (iii) upon receipt when deposit-ed with the United States Postal Service,postage prepaid, addressed as follows or tosuch other person and/or address as a party toreceive may designate by notice to the others:

If to Geisinger: Anesthesiology DepartmentGeisinger Medical Center100 North Academy AvenueDanville, PA 17822-2025

AND FOR LEGAL NOTIC-

ES A COPY TO:

Geisinger System ServicesDepartment of LegalServices100 North Academy AvenueDanville, PA 17822-3021

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If to University: President’ OfficeBloomsburg University ofPennsylvania400 East Second StreetBloomsburg, PA 17815

9.11 Notification of Incidents. Each party agrees topromptly notify the other parties after the dis-covery of any incidents, occurrences, claims, orother causes of action involving this Agree-ment, The parties agree to cooperate with eachother as may be necessary to resolve suchmatters. Notwithstanding the above, no partyshall be required to provide the other partieswith copies of patient safety materials as de-fined in the Pennsylvania Patient Safety Act,to the extent that releasing same would waiveany legal privilege applicable to said materi-als. This section shall survive the terminationof this Agreement.

9.12 Other Parties. This Agreement is solely be-tween the parties hereto and is not intended tobe enforceable by any parties not a party tothis Agreement or to create any express or im-plied rights hereunder of any nature whatso-ever for any other parties not a party to thisAgreement.

9.13 Promotional Materials. Except as otherwiseexpressly stated in this Agreement, each partyagrees not to use the name, trademark, servicemark, or design registered to the other partyor its affiliates in any publicity, promotional,or advertising material, unless review andwritten approval of the intended use is ob-tained from the other parties prior to the re-lease of any such material. Said approval will

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not be unreasonably withheld by any party.Where necessary to meet accreditation re-quirements or as required by law, the natureof this Agreement may be shared.

9.14 Release of Information. The provisions ofthis Agreement are confidential and protectedfrom disclosure to a third.Party, other than ei-ther party’s agents, attorneys, consultants anddesignees, unless disclosure is required bylaw, or said third party is bound to the samelevel of confidentiality set forth in this Agree-ment. Where necessary to meet accreditationrequirements or as required by law, the natureof this Agreement may be shared.

9.15 Unforeseen Circumstances. No party will bedeemed in violation of this Agreement if pre-vented from performing any of its duties andresponsibilities under this Agreement for cir-cumstances beyond its reasonable control. Inthe event any party is unable to perform itsduties and responsibilities due to said circum-stances, the other parties have the right toterminate this Agreement upon written noticeto the affected party.

9.16 Waiver. A delay or omission by a party to ex-ercise any right under this Agreement shallnot be construed to be a waiver of such right.No waiver by any party of a breach of thisAgreement will be deemed a waiver of anysubsequent breach. Acceptance of partialpayment will be deemed a part payment onaccount and will not constitute an accord andsatisfaction.

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IN WITNESS WHEREOF, the parties heretohave set their hands as of the date written below.

GEISINGER CLINIC GEISINGER MEDICAL

Signature: /s/Joseph E. Bisordi, MD Signature:/s/Lynn Miller

Name: Joseph E. Bisordi, MD Name: Lynn Miller

Title: Authorized Signer Title: Authorized Signer

Date: 8-1-07 Date: 8-01-87

GEISINGER WYOMING VALLEYMEDICAL CENTER

GEISINGER SOUTHWILKES-BARRE

Signature: /s/Linda M. Famiglio,MD Signature:/s/Frank Trembulak

Name: Linda M. Famigli,MD Name: Frank Trembulak

Title: Authorized Signer Title: Authorized Signer

Date: 8-1-07 Date: 8-2-20007

BLOOMBURG UNIVERSITY OFPENNSYLVANIA

Approved for form and legality

Signature: /s/ Jessica Kozloff Signature:/s/David F.Stover

Name: Jessica Kozloff Name: David F. Stover

Title: President Title: Authorized Signer

Date: 8-8/07 Date: 8-10/07

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EXHIBIT A

Security Agreement

I, the undersigned, am an agent having the authorityto sign on behalf of Bloomsburg University of Penn-sylvania (“University”), who is doing business withGeisinger Medical Center, Geisinger Wyoming Val-ley Medical Center, Geisinger South Wilkes-Barreand Geisinger Clinic (collectively “Geisinger”). Uni-versity acknowledges that certain students of Uni-versity may receive one or more User ID(s) andpassword(s) (“Users”), which allow Users to accessthe proprietary software of Geisinger or Geisinger’slicensed vendors (“System”). As a result, University’sUsers may have access to or discover confidential in-formation including, but not limited to, certain rec-ords, software designs, screen layouts, and/or infor-mation systems or data found in such Systems. Uni-versity acknowledges and understands that the fol-lowing items are conditions for access to the Systemby said Users and that University will inform all in-volved Users of the following conditions. In the eventthat any User has questions regarding such items,University will either provide an adequate responseor direct him or her to the Geisinger Information Se-curity Office through the Geisinger Help Desk at570-271-8092.

1. The confidentiality and integrity of all infor-mation must be maintained at all times.

2. In no event will the System be copied, altered ormodified or merged with other computer pro-grams.

3. Confidential information will not be released tounauthorized persons nor will any person who is

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not considered a User be permitted to examine ormake copies of any confidential information.

4. User ID(s) and password(s) are equivalent to anelectronic signature, which shall be used to au-thenticate entries into any System to which Us-ers have been granted access.

5. User ID(s) and password(s) will not be revealedto anyone who is not considered a User, as unau-thorized use is not permitted for any reason.

6. User ID(s) and password(s) may be audited forinappropriate access and to identify any and allchanges made to the System.

7. If there is any reason to believe that a pass-word’s confidentiality has been compromised,User will immediately change the affected pass-word (if able to) or notify the Geisinger HelpDesk at 570-271-8092 that the affected passwordmust be changed.

8. When any User no longer requires access,Geisinger will delete the User ID(s) and/or pass-word(s). Geisinger may further change the UserID(s) and/or password(s) at any time by provid-ing the User with new information.

9. User ID(s) and password(s) will apply only tothose Systems which Users are authorized to ac-cess. Under no circumstances will Users make anunauthorized attempt to access any System forwhich they have not been approved.

10. Access to the Systems will be permitted on atemporary basis and only when such access isapproved by Geisinger.

11. In the event Geisinger provides the User withany access hardware or software (such as a

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Keyfob), User will immediately return all suchitems to Geisinger upon the request of Geisingeror termination of the relationship, whichever oc-curs first. If such hardware or software is lost,damaged, or stolen Geisinger will invoice Uni-versity fifty dollars ($50.00) for the item.

12. If there is a violation of any of the above state-ments by the University or his/her Users, suchviolation may be considered a breach of theAgreement between Geisinger and University,which may result in the immediate loss of User’saccess privileges. Both University and Geisingerwill report violations to the other so that appro-priate action may be taken.

13. The terms and conditions of this SecurityAgreement shall survive termination of the rela-tionship between Geisinger and University.

14. Provided this Security Agreement is signed, Us-ers will be provided 10(s) and password(s) in per-son on an as needed basis.

I have read this document carefully and 1 under-stand it. To the extent that I had any questions,they have been answered.

ACKNOWLEDGED AND AGREED:

University Name: Bloomsburg Universityof Pennsylvania

Jessica KozloffAuthorized Signor Printed Name

/s/Jessica KozloffAuthorized Signor Signature

PresidentAuthorized Signor Title

8/8/07Date

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Approved for form and legality

Signature: /s/David E. Stover

Name: David E. Stover

Title: University Legal Counsel

Date: 8/10/07

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FIRST AMENDMENT TO THECOLLABORATION AGREEMENT

FOR NURSE ANESTHESIA EDUCATION

THIS IS THE FIRST AMENDMENT(“Amendment”) to the Collaboration Agreement forNurse Anesthesia Education (“Agreement”) effec-tive August 10, 2007, between Bloomsburg Uni-versity of Pennsylvania (“University”) andGeisinger Medical Center, Geisinger WyomingValley Medical Center, Geisinger South Wilkes-Barre and Geisinger Clinic (hereinafter collective-ly referred to as “Geisinger’’).

NOW THEREFORE, in consideration of themutual covenants contained herein and intending tobe legally bound, the parties agree to amend theAgreement as follows:

A. The following paragraph shall hereby be deletedfrom Section 2.2:

Both parties shall develop a joint AdmissionsCommittee to finalize admission criteria and rec-ommend admission of Students into the Pro-gram, which shall consist of the Program Direc-tor, Geisinger’s designated CRNA Assistant Pro-gram Director, University Department of Nurs-ing Graduate Program Coordinator, Chairpersonof University’s Department of Nursing, and threeother representatives from each party.

And is replaced with the following:

Both parties shall develop a joint AdmissionsCommittee to finalize admission criteria and rec-ommend admission of Students into the Pro-gram, which shall consist of the Program Direc-tor, Geisinger’s designated CRNA Assistant Pro-

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gram Director, University Department of Nurs-ing Graduate Program Coordinator, Chairpersonof University’s Department of Nursing, and onerepresentative from each party.

B. The following shall hereby be added to Section2.8:

G. Students must obtain a PA Child Abuse His-tory Clearance Form (CT-113), and must fur-ther provide Geisinger with proof of such PAChild Abuse History Clearance prior to per-forming Clinical Training duties under theProgram; and

H. Student must obtain a Fingerprint-basedFederal criminal history records check,which does not show any relevant criminalhistory, and must further provide Geisingerwith proof of such Fingerprint-based Federalcriminal records check prior to performingClinical Training duties under the Program.

C. This Amendment shall become effective uponsigning and shall remain in effect until the origi-nal Agreement naturally terminates, is termi-nated, or is otherwise amended.

D. In the event there are any inconsistencies be-tween this Amendment and the Agreement, theterms of this Amendment shall prevail. Exceptas otherwise expressly provided in this Amend-ment, the terms and conditions of the Agreementshall continue in full force and effect.

IN WITNESS WHEREOF, the parties heretohave set their hands as of the day and year indicatedbelow.

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Geisinger Clinic Geisinger Medical Center

Signature: /s/Lynn Miller Signature:/s/Albert Bothe, Jr., M.D.

Name: Lynn Miller Name: Albert Bothe, M.D.

Title: Authorized Signer Title: Authorized Signer

Date: 2/16/09 Date: 2-17-09

Geisinger Wyoming ValleyMedical Center

Geisinger South Wilkes-Barre

Signature: /s/ Linda M. Famiglio, MD Signature:/s/Frank Trembulak

Name: Linda M. Famiglio, MD Name: Frank Trembulak

Title: Authorized Signer Title: Authorized Signer

Date: 2-11-09 Date: February 12, 2009

Bloomburg Universityof Pennsylvania

Approved for formand legality

Signature: /s/Richard H. Rugen, Ed.D. Signature:/s/ David F. Stover

Name: Richard H. Rugen, Ed.D. Name: David F. Stover

Title: Vice President forAdministration and Finance

Title: University Legal Counsel

Date: Date: 2-26-09

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SECOND AMENDMENT TO THECOLLABORATION AGREEMENT

FOR NURSE ANESTHESIA EDUCATION

THIS IS THE SECOND AMENDMENT(“Amendment”) to the Collaboration Agreement forNurse Anesthesia Education (“Agreement”) effectiveAugust 10, 2012 between Bloomsburg University ofPennsylvania (“University”) and Geisinger MedicalCenter, Geisinger Wyoming Valley Medical Center,and Geisinger Clinic (hereinafter collectively referredto as “Geisinger”).

NOW THEREFORE. in consideration of the mu-tual covenants contained herein and intending to belegally bound, the parties agree to amend theAgreement as follows

A SECTION 8, TERM AND TERMINATION, B 1,the term of the Agreement shall hereby be ex-tended through and including February 28, 2013

B This Amendment shall become effective uponsigning and shall remain in effect until the origi-nal Agreement naturally terminates, is termi-nated, or is otherwise amended.

C In the event there are any Inconsistencies be-tween this Amendment and the Agreement, theterms of this Amendment shall prevail. Exceptas otherwise expressly provided in this Amend-ment, the terms and conditions of the Agreementshall continue in full force and effect

IN WITNESS WHEREOF, the parties heretohave set their hands as of the day and year indicatedbelow.

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Geisinger Clinic Geisinger Medical Center

Signature: /s/ Kenneth A.Holdren

Signature: /s/ Susan M. Hallick

Name: Kenneth A. Holdren Name: Susan M. Hallick

Title: Authorized Signer Title: Authorized Signer

Date: 08/08/2012 Date: 8-9-12

Geisinger Wyoming ValleyMedical Center

Signature: /s/ J. Buckley

Name: J. Buckley

Title: Authorized Signer

Date: 8-9-12

Bloomburg Universityof Pennsylvania

Approved for formand legality

Signature: /s/ Ira K. Blake Signature: ___________________

Name: Ira K. Blake Name: ___________________

Title: Provost Title: University LegalCounsel

Date: 8-10-12 Date: ____________________

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Bloomsburg University of Pennsylvania

The authorized representatives below have reviewedand agree this document meets the requests of thedepartment.

Site Name: Geisinger Medical Center, Geisinger Wy-oming Valley Medical Center and Geisinger Clinic

/s/ Michelle Ficca, 8-10-12Department Chairperson orDirector Signature/Date

Dr. Michelle Ficca, Dept.ChairpersonPrint Name/Title

/s/ Robert P. Marande/Dean 8-10-12Signature of the Dean/Date

Robert P. Marande/DeanPrint Name/Title

/s/ Ira K. Blake 8-10-12Signature of the Provost/Date

Ira K. Blake/Provost 8-10-12Print Name/Title