Phat Van Le v. University of Medicine & Dentistry of New Jersey

Honorable Louis H. Pollak, Senior Judge of the United States District Court for*
the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 09-2632
PHAT VAN LE,
Appellant
v.
UNIVERSITY OF MEDICINE & DENTISTRY OF NEW JERSEY;
DRS. NICHOLAS CONTE; HAROLD ZOHN; GARY VITALLETI;
KEVIN LEHNES; MONIQUE BRAATZ; RYAN PALMITESSO;
JEAN McCROSSAN, individually and in
their official capacities; JOHN DOES 1-10
On Appeal of a Decision of the United States District Court
for the District of New Jersey (Civ. No. 08-991)
District Judge: Stanley R. Chesler
Submitted under Third Circuit L.A.R. 34.1(a)
February 2, 2010
Before: McKEE and HARDIMAN, Circuit Judges,
and POLLAK, District Judge.*
(Filed: May 12, 2010 )
OPINION

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2.
POLLAK, District Judge
Phat Van Le appeals from the grant of a motion for summary judgment in favor of
the defendants. Van Le’s suit alleges that he was denied due process during disciplinary
proceedings that resulted in his dismissal from dental school. He challenges the District
Court’s opinion on the merits and also on the District Court’s decision to convert a
motion to dismiss into a motion for summary judgment without providing further
discovery.
I.
Le was a student at the defendant, New Jersey Dental School of the University of
Medicine & Dentistry of New Jersey (UMDNJ). In Le’s third year, during an exam in
Esthetic Dentistry, defendant Dr. Nicolas Conte, the exam proctor, observed suspicious
movements that indicated Le might be looking at another student’s exam. Conte
announced that cheating was not acceptable and the suspicious behavior ceased. Another
proctor, Dr. Rosen, did not observe the behavior.
More than a month after the examination, Conte submitted to the dental school a
formal written complaint against Le. Notice was given to Le that he was accused of
cheating on the examination proctored by Conte and that he would need to appear before
the Dental School Hearing Body in one week. The hearing notice listed certain rights that
university policy gave Le, including: the right to call witnesses; the right to have legal
counsel outside the hearing room to advise him at any time; and the right to have a family

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3.
member, faculty member, or student advise him during the hearing.
Le requested that the hearing be delayed, as it was scheduled during his final exam
period, and two character witnesses that he wished to call had finals. Le’s request was
denied because the university policy set a deadline for holding the hearing and
rescheduling presented logistical problems. However, Le was informed that he was
allowed to submit written statements from the students.
At the hearing, Conte testified to his observations. Four of Le’s classmates
testified to other tests where they believed they saw Le cheat. Le called several
witnesses, including the two who had the scheduling conflict that prompted his request
for a continuance. Le called defendant Dr. Harold Zohn who testified that he observed Le
cheat on another exam and confronted him about it. The transcript reflects Le
questioning his own witnesses, cross-examining other witnesses, and in an active
dialogue with the Hearing Body about the evidence. Following the hearing, Le had the
opportunity to further supplement the hearing record, and he submitted documents stating
that any unusual movements stemmed from a back condition that made it difficult for him
to sit still for long periods.
The Hearing Body found Conte’s testimony credible and concluded that Le
cheated during the Esthetic Dentistry examination. It also found that Le engaged in a
similar pattern of unethical behavior in other courses. The Hearing Body recommended
that Le be dismissed. This recommendation was then sent to Dean Greenberg, the Acting

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4.
Associate Dean for Research, since the Dental School’s dean was recused. Greenberg
met with Le to allow him to provide additional information. She decided that Le should
be expelled. Le then, with the aid of counsel, appealed that decision to the Executive
Vice President for Academic and Clinical Affairs of the UMDNJ. The Executive Vice
President affirmed the expulsion.
Le then filed this lawsuit asserting claims for violation of his federal and state
equal protection and due process rights. He also asserted state-law claims for defamation
and false light. Defendants filed a motion to dismiss. Because this motion presented
matters outside the pleading, the District Court, sua sponte, converted the motion to
dismiss into a motion for summary judgment, gave notice to the parties, and allowed the
parties to file additional materials.
II.
Le attributes several substantive and procedural errors to the District Court. We
review a grant of summary judgment de novo. Kach v. Hose, 589 F.3d 626, 633-34 (3d
Cir. 2009). Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” FED. R.
CIV. P. 56(c). The evidence of the nonmovant is to be credited and all justifiable
inferences are to be drawn in his favor. Kach, 589 F.3d at 634. The motion can be
granted only if the evidence is “so one-sided that one party must prevail as a matter of

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5.
law.” Id.
A. Did the District Court Improperly Resolve Disputed Factual Issues?
For his first point of error, Le argues that the District Court improperly made
findings of disputed factual issues.
First, whether the Hearing Body considered the prior instances of cheating to
prove the one charged instance, or whether the Hearing Body enlarged the formal
charges, are not material facts, as in either situation due process was not violated by
consideration of past instances. The District Court did not make a factual finding about
the use of the evidence of other instances of cheating but rather stated that introduction of
the evidence did not offend due process in whatever way the evidence was used by the
Hearing Body. As discussed in Part II (B) infra, of this opinion, this did not violate due
process.
The District Court did not err in finding that Le had a meaningful opportunity to
present his defense. Le argues that the short period of time to prepare left him unable to
present an adequate defense. It was not disputed that Le was an educated, capable
graduate student who had several days to prepare his defense, and the opportunity to
consult both legal and non-legal counsel, with an additional period to provide written
supplements. The District Court did not improperly find facts: it permitted Le every
reasonable inference, but concluded that undisputed facts showed Le to have a reasonable
opportunity to present a defense.

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6.
With regard to the argument that the University did not consider Le’s defenses,
there is no evidence that the Hearing Body and deans who heard Le’s disciplinary case
did not consider his arguments. In fact, there is very substantial evidence that the
opposite occurred. Mere speculation that Le’s arguments were not considered does not
create a genuine issue of material fact. See Lexington Ins. Co. v. Western Pennsylvania
Hosp., 423 F.3d 318, 333 (3d Cir. 2005).
B. Did the University Provide Le Adequate Process?
The next group of claimed errors challenge the District Court’s determination that
Le received adequate procedural protections during the disciplinary proceedings. Le
argues that the District Court erred in relying on Dixon v. Alabama State Board of
Education, 294 F.2d 150 (5th Cir. 1961) and Sill v. Pennsylvania State University, 462
F.2d 463 (3d Cir. 1972), since they antedated the Supreme Court’s decision in Mathews v.
Eldridge, 424 U.S. 319 (1976).
Le’s arguments are unavailing. The Due Process Clause protects students during
disciplinary hearings at public institutions. Sill, 462 F.2d at 469. There is not a specific
format that these proceedings have to follow, so long as the university provides sufficient
protections to comply with due process. Id. Even assuming it was error for the District
Court to have not explicitly applied the Mathews balancing test, application of the test
does not aid Le. The test requires examining 1) the private interest, 2) the risk of
erroneous deprivation of such interest, and 3) the government’s interest. Mathews, 424

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7.
U.S. at 335. Le’s interest, avoidance of being expelled from a professional school for
academic dishonesty, is certainly weighty, but it is the only factor that favors him.
The risk of erroneous deprivation is low. Le was afforded extensive procedural
protections: notice, a hearing before a panel of students and faculty, the right to present
witnesses and evidence, the right to cross examine witnesses, a lay adviser in the room, an
attorney outside the hearing room, two levels of appeal (during one of which he was
represented by counsel), and the opportunity to submit further evidence after the hearing.
Le argues that the notice was insufficient because he was not advised that evidence would
be presented against him regarding other incidents. However, Le was aware of rumors
regarding other incidents of cheating. Such evidence also served to rebut his defense that
a back problem caused his unusual movements. In addition, there was a period of at least
four days between the two days of the hearing to develop a response to these allegations.
He was permitted to submit further material after the hearing. Thus, the risk of erroneous
deprivation was extremely low.
Lastly, the dental school’s interest in prompt disposition of the charges weighs
heavily against Le. Postponement of the disciplinary proceedings would likely have
resulted in a delay of several months, given that the incident occurred at the end of the
spring term and numerous students and faculty members would very likely not have been
readily available during the summer period.
Le argues that the failure to follow the university policies regarding the reporting

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8.
of dishonest behavior was a violation of due process. He particularly notes that the
testimony of Dr. Zohn observing prior instances of cheating without reporting them was
the “most glaring example of unfairness,” which is peculiar as Zohn was a witness called
by Le. A school’s failure to follow its own policies is not, in itself, a violation of due
process. See Winnick v. Manning, 460 F.2d 545, 550 (2d Cir. 1972) (“[W]e are not
inclined to hold that every deviation from a university's regulations constitutes a
deprivation of due process.”); Cobb v. Rector, Visitors of the University of Virginia, 69 F.
Supp. 2d 815, 828-29 (W.D. Va. 1999). So long as the procedural protections actually
provided were sufficient and fairly administered, due process is satisfied.
C. Was the University’s Decision Supported by Substantial Evidence?
Le argues that due process requires that the University’s determination be
supported by substantial evidence and that the District Court erred by not considering
evidence in the record that supports Le’s position. The substantial evidence standard
requires such evidence “as a reasonable mind might accept as adequate to support a
conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). This standard
must be applied when viewing the record as a whole. Universal Camera Corp. v. NLRB,
340 U.S. 474, 487-88 (1951).
The District Court did not err in applying this standard. Sufficient evidence was
presented during the hearing to support a reasonable conclusion that Le cheated. Conte
presented what the Hearing Body found to be credible evidence of suspicious movements.

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9.
This was corroborated by a substantial number of students presenting evidence of a
pattern of behavior on Le’s part. A reasonable factfinder could have discredited Le’s
defense that his actions were caused by back problems. The Hearing Body observed him
sitting for two separate days without moving suspiciously. Conte testified that the
suspicious behavior stopped when he warned the test-takers about cheating. Thus, the
expulsion was backed by substantial evidence.
D. Was Le Entitled to Discovery before the District Court Granted the Summary
Judgment Motion?
Lastly, Le argues that the District Court improperly converted the motion to
dismiss to a motion for summary judgment, thus depriving him of the opportunity to
conduct discovery. Federal Rule of Civil Procedure 12(d) requires that if matters outside
the pleading are presented to the court and not excluded, the court must treat the motion
to dismiss as a motion for summary judgment, provided that the court gives the parties a
reasonable opportunity to present pertinent material. FED. R. CIV. P. 12(d). When
reviewing a district court’s decision to convert the motion, we review three issues 1)
whether the materials submitted required conversion, 2) whether the parties had adequate
notice of an intention to convert the motion, and 3) if the parties did not have notice,
whether the failure to provide notice was harmless error. In re Rockefeller Ctr. Prop.,
Inc. Secs. Litig., 184 F.3d 280, 287 (3d Cir. 1999).
First, the material submitted required conversion. The defendants submitted

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10.
several exhibits consisting of school policies, disciplinary decisions against Le, and
hearing testimony that made the motion an appropriate candidate for conversion to a
motion for summary judgment.
Second, the District Court gave sufficient notice and an opportunity to submit
relevant material. This court has required that at least ten days notice be given before
conversion of a Rule 12(b)(6) motion. Crown Central Petroleum v. Waldman, 634 F.2d
127, 129 (3d Cir. 1980). The District Court gave the defendants approximately twenty
days to submit materials. It gave Le an additional seventeen days to submit material in
response. Thus, the District Court gave proper notice in converting the motion to a
motion for summary judgment.
Le was not improperly denied discovery. We review the District Court’s denial of
discovery for abuse of discretion. Alston v. Parker, 363 F.3d 229, 236 (3d Cir. 2004). Le
argues that discovery would have allowed him to delve into why the university chose to
conduct the hearing the way it did. However, such information would not have been
pertinent: the issue to be explored was whether the procedure that was afforded
comported with due process. Sill, 462 F.2d at 469. The District Court followed the
proper standards in converting the motion to dismiss to a motion for summary judgment
and did not abuse its discretion in denying discovery.
III.
For the foregoing reasons, we will affirm the order of the District Court granting

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11.
summary judgment in favor of the defendants.

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