Bonnie Davis v. Michael Rao

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 3:13-cv-00239-JRS. Copies to all parties and the district court/agency. [999430233]. [13-2493]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 13-2493

BONNIE NEWMAN DAVIS,
Plaintiff - Appellant,
v.
MICHAEL RAO, PhD., individually; L. TERRY OGGEL, PhD.,
individually; FRED M. HAWKRIDGE, PhD., individually; BEVERLY
J.
WARREN,
PhD.,
individually;
CYNTHIA
K.
KIRKWOOD,
Pharm.D., individually,
Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Richmond.
James R. Spencer, Senior
District Judge. (3:13-cv-00239-JRS)

Submitted:

August 27, 2014

Decided:

September 5, 2014

Before NIEMEYER and AGEE, Circuit Judges, and HAMILTON, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Scott G. Crowley, Sr., CROWLEY & CROWLEY, Glen Allen, Virginia,
for Appellant.
Mark R. Herring, Attorney General of Virginia,
Rhodes B. Ritenour, Deputy Attorney General, Peter R. Messitt,
Sydney Edmund Rab, Senior Assistant Attorneys General, Richmond,
Virginia, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Bonnie
number

of

N.

Davis

filed

Virginia

civil

Commonwealth

administrators,

alleging

process

in

rights

a

that

denying

complaint
University

Defendants

her

against

violated

application

for

a

(“VCU”)
her

due

tenure

and

promotion to the position of associate professor at VCU.

Davis

appeals the district court’s order granting Defendants’ Fed. R.
Civ. P. 12(b)(6) motion to dismiss.
We review de novo a district court’s ruling on a Rule
12(b)(6) motion, accepting factual allegations in the complaint
as true and drawing all reasonable inferences in favor of the
nonmoving party.

Kensington Volunteer Fire Dep’t v. Montgomery

Cnty., 684 F.3d 462, 467 (4th Cir. 2012).

To survive a Rule

12(b)(6) motion to dismiss, a complaint must contain sufficient
“facts to state a claim to relief that is plausible on its
face.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To state a procedural due process claim, Davis must

allege that: (1) she had a “constitutionally cognizable life,
liberty, or property interest;” (2) Defendants deprived her of
that

interest;

(3)

and

“the

constitutionally inadequate.”

procedures

employed

were

Sansotta v. Town of Nags Head,

724 F.3d 533, 540 (4th Cir. 2013).

Property interests “are

created and their dimensions are defined by existing rules or
understandings

that

stem

from

an
2

independent

source

such

as

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state law.”

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Bd. of Regents of State Colls. v. Roth, 408 U.S.

564, 577 (1972).

To possess a property interest, a claimant

“must have more than a unilateral expectation of it.

[Sh]e

must, instead, have a legitimate claim of entitlement to it.”
Id.
On appeal, Davis argues that even in the absence of a
protected property interest, she was entitled to a fair review
process

under

Despite

Davis’

protected

VCU’s

Promotion

assertions

liberty

or

to

and

Tenure

the

contrary,

property

Review

interest

demonstrating
is

a

requirement for establishing a Due Process claim.
724 F.3d at 540.

Guidelines.
a

threshold

See Sansotta,

Moreover, “[p]rocess is not an end in itself.

Its constitutional purpose is to protect a substantive interest
to which the individual has a legitimate claim of entitlement.”
Olim v. Wakinekona, 461 U.S. 238, 250 (1983).
procedures,

without

property interest.

more,

do

not

give

rise

Tenure review
to

a

protected

Siu v. Johnson, 748 F.2d 238, 244 n.11 (4th

Cir. 1984) (concluding that such a claim “is a circular one” and
thus

“conceptually

unacceptable”).

Because

Davis

has

not

alleged any property interest distinguishable from the tenure
review procedures provided by VCU, we conclude that she has not
demonstrated the threshold requirement that she was deprived of
a protected property or liberty interest.

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Accordingly, we affirm the district court’s judgment.
We

dispense

contentions

with
are

oral

argument

adequately

because

presented

in

the

facts

and

the

materials

legal
before

this court and argument would not aid the decisional process.

AFFIRMED

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