MacKean Maisha v. University of North Carolina

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case number: 1:12-cv-00371-CCE-LPA Copies to all parties and the district court/agency. [999776346].. [15-1185]

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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 15-1185

MACKEAN P. NYANGWESO MAISHA,
Plaintiff - Appellant,
v.
UNIVERSITY OF NORTH CAROLINA; HOLDEN THORP, Chancellor; WADE
H. HARGROVE, Chair Board of Trustees; HANNAH D. GAGE, Board
of Governors; MICHAEL KOSOROK; MELISSA HOBGOOD; SCOTT ZENTZ;
MICHAEL G. HUDGENS; CHENXI LI; JASON P. FINE; GARY G. KOCH;
MICHAEL A. HUSSEY; ALISA S. WOLBERG; BAHJAT F. QAQISH; JOHN
S. PREISSER; JIANWAN CAI,
Defendants - Appellees.

Appeal from the United States District Court for the Middle
District of North Carolina, at Greensboro. Catherine C. Eagles,
District Judge. (1:12-cv-00371-CCE-LPA)

Submitted:

February 29, 2016

Decided:

March 17, 2016

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

Affirmed by unpublished per curiam opinion.

Stephon J. Bowens, BOWENS LAW GROUP, PLLC, Raleigh, North
Carolina, for Appellant.
Roy Cooper, North Carolina Attorney
General, Matthew Tulchin, Assistant Attorney General, Raleigh,
North Carolina, for Appellees.

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Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM:
Mackean P. Nyangweso Maisha appeals the district court’s
orders dismissing portions of his amended complaint, granting
summary judgment to Appellees on his remaining claims, striking
portions

of

declarations

judgment

to

the

he

University

(UNC) on its counterclaim.

submitted,
of

North

and

Carolina

granting
at

summary

Chapel

Hill

Finding no error, we affirm.
I.

We review de novo a district court’s dismissal of claims
under Fed. R. Civ. P. 12(b)(6), 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 Cty., 684 F.3d 462, 467 (4th Cir. 2012).
survive

a

motion

to

dismiss,

the

complaint’s

To

“[f]actual

allegations must be enough to raise a right to relief above the
speculative level” and sufficient “to state a claim to relief
that is plausible on its face.”

Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555, 570 (2007).
Maisha contends that the district court erred in dismissing
his

claims

under

42

U.S.C.

§ 1983

(2012)

against

defendants

Melissa Hobgood, Scott Zentz, Gary G. Koch, Bahjat F. Qaqish,
and John S. Preisser, as well as certain claims against UNC
under

Title

VI

of

the

Civil

Rights

Act

of

1964,

42

U.S.C.

§§ 2000d to 2000d-7 (2012), amended by Every Student Succeeds
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Act, Pub. L. No. 114-95, 129 Stat. 1802, 2171 (2015), as barred
by the statute of limitations because they are timely under the
continuing-violation

doctrine.

While

North

Carolina’s

three-

year statute of limitation applies to claims under Title VI and
§ 1983, see Tommy Davis Construction, Inc. v. Cape Fear Public
Utility

Authority,

807

F.3d

62,

67

(4th

Cir.

2015)

(§ 1983

claims); Jersey Heights Neighborhood Ass’n v. Glendening, 174
F.3d 180, 187 (4th Cir. 1999) (Title VI claims), federal law
controls when the statute of limitations beings to run.

A Soc’y

Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir. 2011).
“In

general,

to

establish

a

continuing

violation,

the

plaintiff must establish that the unconstitutional or illegal
act was a fixed and continuing practice.”
internal

quotation

marks

unlawful

acts

distinguishable

effects

of

an

are

original

omitted).

violation

Id. (alteration and

However,
from

the

because

constitute a continuing violation.”

Id.

the

“continu[ing]
continuing
latter

do

ill
not

Only “if the same

alleged violation was committed at the time of each act[] [does]
the limitations period begin[] anew with each violation.”
(internal quotation marks omitted).
‘pattern

or

practice’

of

General allegations of “a

discrimination”

establish a continuing violation.

Id.

are

insufficient

to

Williams v. Giant Food Inc.,

370 F.3d 423, 429-30 (4th Cir. 2004).

We conclude that the

district court did not err in dismissing these claims as barred
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by

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the

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statute

of

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limitations

as

each

event

related

to

a

discrete act that was not repeated by the individual actor, and
Maisha’s

general

allegations

of

a

pattern

or

practice

of

discrimination do not suffice to render these claims timely.
Next,

Maisha

contends

that

the

district

court

erred

in

dismissing his remaining § 1983 claims against Defendants Wade
H. Hargrove, Hannah D. Gage, Chenxi Li, Michael A. Hussey, and
Alisa S. Wolberg.

We conclude, however, that the district court

did not err in dismissing these parties because Maisha’s amended
complaint did not allege sufficient facts to state a plausible
claim that any of these parties violated a constitutional right. 1
Finally, Maisha argues that the district court erred in
dismissing his conversion claim against Defendants Li, Michael
G.

Hudgens,

and

Jason

P.

Fine.

North

Carolina

defines

conversion as “the unauthorized assumption and exercise of right
of

ownership

over

goods

or

personal

property

belonging

to

another to the alteration of their condition or the exclusion of
the owner’s rights.”

Marina Food Assocs., Inc. v. Marina Rest.,

1

We further note that because Maisha’s opening brief failed
to argue that the district court erred in dismissing Defendants
Holden Thorpe, Michael Kosorok, and Jianwan Cai, Maisha has
waived appellate review of this portion of the district court’s
order. See A Helping Hand, LLC v. Balt. Cty., 515 F.3d 356, 369
(4th Cir. 2008).
(“It is a well settled rule that contentions
not raised in the argument section of the opening brief are
abandoned.” (internal quotation marks omitted)).

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Inc.,

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394

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S.E.2d

824,

831

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(N.C.

Ct.

App.

1990).

Federal

copyright law “preempt[s] a conversion claim where the plaintiff
alleges only the unlawful retention of its intellectual property
rights and not the unlawful retention of the tangible object
embodying its work.”
of

the

Univ.

of

United States ex rel. Berge v. Bd. of Trs.

Ala.,

104

F.3d

1453,

(internal quotation marks omitted).

1463

(4th

Cir.

1997)

“[A] state law action for

conversion will not be preempted if the plaintiff can prove the
extra

element

physical

that

object

the

embodying

quotation marks omitted).

defendant

unlawfully

plaintiff’s

work.”

retained
Id.

the

(internal

Maisha’s amended complaint alleged

claims based on plagiarism and lack of attribution, which are
preempted by federal copyright law.

Id. at 1464.

Thus, we

conclude that the district court did not err in dismissing these
claims.
II.
Maisha
granting

also

contends

that

summary

judgment

to

the
UNC,

district
Fine,

and

court

erred

Hudgens.

in
We

“review[] de novo [a] district court’s order granting summary
judgment.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d

562, 565 n.1 (4th Cir. 2015).

“A district court ‘shall grant

summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.’”

Id. at 568 (quoting Fed. R. Civ.
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P. 56(a)).

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In determining whether a genuine issue of material

fact exists, “we view the facts and all justifiable inferences
arising

therefrom

nonmoving

party.”

omitted).

in

the

Id.

light

at

565

most
n.1

favorable

(internal

to

. . .

quotation

the

marks

However, “[c]onclusory or speculative allegations do

not suffice, nor does a mere scintilla of evidence in support of
[the nonmoving party’s] case.”

Thompson v. Potomac Elec. Power

Co., 312 F.3d 645, 649 (4th Cir. 2002) (internal quotation marks
omitted).
First,

Maisha

argues

that

the

district

court

erred

in

striking portions of several declarations that he attached to
his opposition to the motion for summary judgment.

We review

for abuse of discretion a district court’s ruling regarding the
admissibility of evidence for summary judgment purposes.
v. Blair, 549 F.3d 953, 963 (4th Cir. 2008).

Nader

We discern no

abuse of discretion in the district court’s evidentiary rulings
and, thus, affirm the district court’s order striking portions
of the disputed declarations.
Second, Maisha contends that the district court erred in
granting summary judgment to UNC on his Title VI discrimination
and retaliation claims.

2

We apply the familiar McDonnell Douglas 2

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05

(1973).

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test for claims of discrimination under Title VI.

Rashdan v.

Geissberger, 764 F.3d 1179, 1182 (9th Cir. 2014) (collecting
cases from four circuits); see Middlebrooks v. Univ. of Md., No.
97-2473, 1999 WL 7860, at *4-5 (4th Cir. Jan. 11, 1999).

We

conclude that the district court did not err in finding that
Maisha failed to establish a prima facie case.
correct

that

UNC

did

not

have

a

formal

While Maisha is

policy

concerning

enrollment in BIOS 994, a doctoral dissertation course, UNC had
an informal policy requiring that students take a “Qualifying
Exam” prior to beginning dissertation research.

See Merritt v.

Old Dominion Freight Line, Inc., 601 F.3d 289, 297 (4th Cir.
2010)

(“[A]n

informal

policy

is

no

less

a

policy.”).

When

Maisha failed to take the Qualifying Exam as instructed, Fine
informed Maisha that he was longer eligible to take BIOS 994,
and, when Maisha failed to register for any other courses, he
was

eventually

unenrolled

from

UNC.

Thus,

we

conclude

that

Maisha was not eligible to continue his graduate studies.
Maisha

also

contends

that

the

district

court

erred

in

granting summary judgment to UNC on his Title VI retaliation
claim.

To establish a Title VI retaliation claim, Maisha “must

show (1) that [he] engaged in protected activity; (2) that [UNC]
took a material adverse . . . action against [him;] and (3) that
a causal connection existed between the protected activity and
the adverse action.”

Peters v. Jenney, 327 F.3d 307, 320 (4th
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On appeal, Maisha argues that temporal proximity

establishes causation.

However, UNC learned of his complaint to

the Department of Education’s Office of Civil Rights in 2009,
and

it

was

retaliated

not
against

Qualifying Exam.
the

until

temporal
v.

(noting

that

retaliatory

him

by

2010

that

requiring

Maisha

him

to

alleged
sit

UNC

for

the

This gap of nearly one year does not provide

proximity

Lettieri

June

Equant

needed

Inc.,

plaintiff

animus

when

to

478

establish

F.3d

relied
there

on
was

protected activity and termination).

640,

causation.

650

(4th

Cir.

See
2007)

additional

evidence

seven-month

gap

of

between

Thus, we conclude that the

district court did not err in granting summary judgment to UNC
on this claim.
Third, Maisha contends that the district court erred in
granting

summary

judgment

on

his

claims

of

negligent

and

intentional infliction of emotional distress against Fine and
Hudgens. 3

In North Carolina, claims of intentional and negligent

3

Maisha also contends that the district court erred in
granting summary judgment to Fine and Hudgens on his due process
claims pursuant to § 1983.
As the district court correctly
noted, in order to establish a due process violation, “a
plaintiff must first show that he has a constitutionally
protected liberty or property interest.” Stone v. Univ. of Md.
Med. Sys. Corp., 855 F.2d 167, 172 (4th Cir. 1988) (internal
quotation marks omitted). Because Maisha failed to argue in his
opening brief that he has a protected property or liberty
interest, we conclude that he has waived appellate review of
this issue. See A Helping Hand, LLC, 515 F.3d at 369.

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infliction of emotional distress both require a plaintiff to
show severe emotional distress.

Pierce v. Atl. Grp., Inc., 724

S.E.2d 568, 577 (N.C. Ct. App. 2012).

Severe emotional distress

includes “any emotional or mental disorder . . . which may be
generally recognized and diagnosed by professionals trained to
do so.”
to

Id.

support

While medical evidence is not necessarily required
a

claim,

a

plaintiff’s

failure

to

seek

medical

treatment is a ground for granting a defendant summary judgment
when there is no “real evidence of severe emotional distress.”
Pacheco v. Rogers & Breece, Inc., 579 S.E.2d 505, 508 (N.C. Ct.
App. 2003).

We conclude that the district court did not err in

finding that Maisha failed to forecast sufficient evidence to
demonstrate he suffered severe emotional distress.

See Johnson

v. Scott, 528 S.E.2d 402, 405 (N.C. Ct. App. 2000) (finding
evidence
fear

of

of

sleeplessness,

dark

nightmares,

insufficient

to

loss

establish

of

appetite,

severe

and

emotional

distress).
Finally, Maisha contends that the district court erred in
granting summary judgment to UNC on its counterclaim for money
had and received.

“An action for money had and received may be

maintained as a general rule whenever the defendant has money in
his hands which belongs to the plaintiff, and which in equity
and

good

conscience

he

ought

to

pay

to

the

plaintiff.”

Primerica Life Ins. Co. v. James Massengill & Sons Constr. Co.,
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712 S.E.2d 670, 676 (N.C. Ct. App. 2011) (internal quotation
marks omitted).

To prove a claim of unjust enrichment, UNC was

required to establish “(1) a measurable benefit was conferred on
[Maisha], (2) [Maisha] consciously accepted that benefit, and
(3) the benefit was not conferred officiously or gratuitously.”
Id.

at

judgment

677.

We

on

its

conclude

that

counterclaim

UNC

was

because

entitled

it

to

refunded

summary
Maisha’s

student loans when he failed to enroll in courses as required by
his loan agreement and that it did not do so gratuitously.
III.
Accordingly, we affirm the district court’s orders.
dispense

with

contentions

are

oral

argument

adequately

because

presented

in

the
the

facts

We

and

legal

materials

before

this court and argument would not aid the decisional process.

AFFIRMED

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