Page v. Hicks et al

Filing 32

MEMORANDUM OPINION. Signed by Chief Judge Karon O Bowdre on 2/12/2018. (JLC)

FILED
2018 Feb-12 PM 03:33
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ASHLEY WILCOX PAGE,
Plaintiff,
v.
TODD L. HICKS, NNA, CRNA; et al.,
Defendants.

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2:16-CV-01993-KOB

MEMORANDUM OPINION
Ashley Wilcox Page, a former student in the University of Alabama at Birmingham’s
(“UAB”) School of Nursing Anesthesia Program, filed suit against Todd Hicks, Susan
McMullan, Peter Tofani, and the Board of Trustees of the University of Alabama, alleging that
they wrongfully dismissed her from the Program. (Doc. 25). In Counts 1 and 2, Ms. Page raises
due process claims against the Board of Trustees and all three individual defendants in their
official and individual capacities; in Count 3, Ms. Page asserts a negligence claim against
Mr. Hicks and Ms. McMullan in their official and individual capacities; in Count 4, Ms. Page
presents a negligence claim against Ms. McMullan in her official and individual capacities; and
in Count 5, Ms. Page pleads a negligence claim against Mr. Tofani in his official and individual
capacities. (Id.). In the federal due process claims, she seeks monetary damages and injunctive
relief, and in the state law negligence claims, she seeks only monetary damages.
Defendants move to dismiss the amended complaint, asserting that they are entitled to
Eleventh Amendment immunity, sovereign immunity, state agent immunity, and qualified
immunity, and in the alternative, that the amended complaint fails to state a federal claim. (Doc.

26). The court WILL GRANT Defendants’ motion to dismiss and WILL DISMISS the amended
complaint.
The court finds that the Board of Trustees is entitled to Eleventh Amendment immunity,
so the court WILL DISMISS WITHOUT PREJUDICE the Board of Trustees as a defendant.
The court finds that the individual defendants in their official capacities are entitled to
Eleventh Amendment immunity from the federal claims seeking monetary damages, but that
under the Ex parte Young doctrine, they are not entitled to Eleventh Amendment immunity from
the federal claims seeking injunctive relief. Although the court finds that the individual
defendants are not entitled to Eleventh Amendment immunity from the federal claims seeking
injunctive relief, the court finds that Ms. Page fails to state a procedural or substantive due
process claim. As a result, the court WILL DISMISS WITHOUT PREJUDICE the federal
claims raised against the individual defendants in their official capacities seeking monetary
damages, and WILL DISMISS WITH PREJUDICE the federal claims raised against the
individual defendants in their official capacities seeking injunctive relief.
The court also finds that the individual defendants are entitled to qualified immunity from
the federal claims seeking monetary damages from them in their individual capacities because
Ms. Page’s allegations fails to establish a constitutional violation. The court WILL DISMISS
WITH PREJUDICE the federal claims raised against the individual defendants in their individual
capacities.
Finally, in light of the court’s dismissal of all of the federal claims, the court declines to
exercise supplemental jurisdiction over the state law claims. The court WILL DISMISS
WITHOUT PREJUDICE Counts 3, 4, and 5 for lack of jurisdiction.

2

I.

BACKGROUND
At the motion to dismiss stage, the court must accept as true the allegations in the

complaint and construe them in the light most favorable to the plaintiff. Butler v. Sheriff of Palm
Beach Cty., 685 F.3d 1261, 1265 (11th Cir. 2012); Stalley v. Orlando Reg’l Healthcare Sys., 524
F.3d 1229, 1232–33 (11th Cir. 2008). Taken in that light, in August 2014, Ms. Page enrolled as
a student at the UAB’s School of Nursing Anesthesia Program. (Doc. 25 at 3). In August 2016,
she began a clinical rotation at Baptist South Hospital in Montgomery, Alabama. (Id.).
Apparently, between August 18 and August 25, 2016, during Ms. Page’s clinical rotation,
three evaluators filled out negative evaluations about her performance. (Id. at 3, 9). Ms. Page
contends that one of the evaluations was not actually about her, but about a different nursing
student. (Id. at 5, 10). Assistant Professor Todd Hicks received the three negative clinical
evaluations about Ms. Page and he sent them to the Director of the Nurse Anesthesia Program,
Susan McMullan. (See id. at 4–5, 9). On August 28, 2016, Ms. McMullan emailed Ms. Page
instructing her to attend a meeting with several UAB employees, including herself and the
Assistant Dean for Student Affairs, Peter Tofani. (See id. at 6).
The meeting took place on August 29, 2016. (Id. at 5). At the meeting, Ms. McMullan
gave Ms. Page the three evaluations, told her that she “would not be allowed to continue in the
Program as an unsafe nurse,” and informed her that she “was dismissed from the UAB School of
Nursing Anesthesia program effective immediately.” (Id. at 5–6). According to Ms. Page,
Ms. McMullan made the “unilateral decision” to dismiss her. (Id. at 12). Mr. Tofani gave
Ms. Page a business card and asked her to call him when she was ready to learn about her
options to appeal the dismissal. (Id. at 5–6).

3

In September 2016, Ms. Page attended a meeting with Mr. Tofani and another UAB
employee. (Id. at 7). At that meeting, Mr. Tofani told Ms. Page that she had been dismissed
from the program for safety reasons, but also stated that she was still a student, she had received
a failing grade, and she would be dismissed at the end of the semester. (Id. at 7–8). He told her
that she would not be reinstated. (Id.).
For several months after the August meeting, Ms. Page continued to correspond and meet
with UAB administrators about her dismissal. (Id. at 8–13). Different administrators told
Ms. Page that she had or had not yet been dismissed from school, and that she could follow the
academic misconduct grievance procedure or the student academic complaint process described
in the School of Nursing Handbook. (Id. at 8–10). On December 7, 2016, the School convened
a grievance hearing panel to consider Ms. Page’s challenge to her dismissal. (Id. at 12).
Ms. Page’s attorney was present, but not allowed to speak; most of the witnesses that Ms. Page
requested did not attend; and Ms. Page was not allowed to present testimony from those missing
witnesses. (Id. at 12–13). On December 19, 2016, the Dean of the School of Nursing sent
Ms. Page a letter stating that she was “dismissed from the Nurse Anesthesia specialty track of the
MSN program.” (Id. at 13–14).
Ms. Page filed suit against Mr. Hicks, Ms. McMullan, Mr. Tofani, and the Board of
Trustees of the University of Alabama, 1 asserting the following federal counts: (1) Defendants
deprived her of due process, in violation of the Fourteenth Amendment to the U.S. Constitution,
by dismissing her without following School of Nursing’s requirements for dismissing a student
(“Count 1”); and (2) Defendants deprived her of due process, in violation of 42 U.S.C. § 1983,
1

Ms. Page’s initial complaint incorrectly named as a defendant the University of
Alabama at Birmingham, but after the case was removed to federal court, the court substituted
the Board of Trustees of the University of Alabama as the correct defendant. (See Doc. 17).

4

by dismissing her intentionally, willfully, negligently, maliciously, with deliberate indifference,
and/or with a reckless disregard for the natural and probable consequences of their act (“Count
2”). (Doc. 25 at 14–17). For those counts, she seeks monetary damages and injunctive relief in
the form of reinstatement as a student. (Id.).
Ms. Page also asserts the following state law negligence claims against the individual
defendants: (1) negligence by Mr. Hicks and Ms. McMullan for using a different student’s
clinical evaluation as grounds to dismiss Ms. Page from the school (“Count 3”); (2) negligence
by Ms. McMullan for failing to follow the School of Nursing’s procedures for dismissing a
student (“Count 4”); and (3) negligence by Mr. Tofani for failing to follow the School of
Nursing’s procedures for dismissing a student (“Count 5”). (Id. at 14–20). For those counts, she
seeks only monetary damages. 2 (Id. at 20–21).
Ms. Page initially filed suit in state court. (Doc. 1-1). Defendants removed the case to
federal court, (doc. 1), and then moved to dismiss the amended complaint for lack of jurisdiction
and failure to state a claim, (doc. 26).
II.

DISCUSSION
Defendants move to dismiss the amended complaint on various immunity grounds under

Federal Rule of Civil Procedure 12(b)(1). (Doc. 26 at 7–20, 26–30). In the alternative, they
move, under Rule 12(b)(6), to dismiss Counts 1 and 2—the federal counts—for failure to state a
claim. (Id. at 20–26).

2

In her response to the motion to dismiss, Ms. Page states that she also seeks declaratory
relief. (Doc. 28 at 22). The amended complaint, however, does not request declaratory relief in
those counts. (See Doc. 25 at 20–21). Ms. Page may not amend her complaint via briefing on a
motion to dismiss. Cf. GeorgiaCarry.Org v. Georgia, 687 F.3d 1244, 1258 n.26 (11th Cir. 2012)
(“[A] plaintiff may not amend the complaint through argument at the summary judgment phase
of proceedings.”).
5

Rule 12(b)(1) permits a district court to dismiss for “lack of subject-matter jurisdiction.”
Fed. R. Civ. P. 12(b)(1). Rule 12(b)(6) permits a district court to dismiss “for failure to state a
claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
Before addressing the motion to dismiss, the court must clarify some preliminary matters
about the amended complaint. First, the two federal counts, Counts 1 and 2, each refer vaguely
to “due process” violations. (See Doc. 25 at 14–17). Such a vague assertion of “due process”
violations does not state a recognizable cause of action. However, because Ms. Page seeks both
monetary damages and equitable relief in the form of reinstatement, the court construes her
amended complaint in the light most favorable to her, and assumes that she raises both
procedural and substantive due process claims. See McKinney v. Pate, 20 F.3d 1550, 1557 (11th
Cir. 1994) (en banc) (“In substantive due process cases, the claimant seeks compensatory
damages for the value of the deprived right. In procedural due process cases, however, although
the claimant may seek compensatory damages, the primary relief sought is equitable . . . .”).
The court construes Count 1 to raise a procedural due process claim because the claim is
based on Defendants’ alleged failure to give Ms. Page proper notice and an opportunity to be
heard before dismissing her from the Program. (See id. at 15). The court construes Count 2 to
raise a substantive due process claim because the claim is based on Defendants’ actions that
Ms. Page alleges were intentional, willful, negligent, malicious, deliberately indifferent, and
taken with “reckless disregard for the natural and probable consequences of their act.” (See id. at
16).
In addition, Count 1 appears to be a freestanding due process claim, while Count 2 is a
§ 1983 process claim. (Id. at 14, 16). But “[w]here a statute provides an adequate remedy, [the
court] will not imply a judicially created cause of action directly under the Constitution.”

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GeorgiaCarry.Org v. Georgia, 687 F.3d 1244, 1254 n.15 (11th Cir. 2012). Section 1983
provides a cause of action for “the deprivation of any rights, privileges, or immunities secured by
the Constitution and laws.” 42 U.S.C. § 1983. As a result, the court “will not imply a judicially
created” freestanding due process claim, but will instead construe Count 1 as a § 1983 due
process claim. See Anderson v. Edwards, 505 F. Supp. 1043, 1045 (S.D. Ala. 1981) (“[N]o
claim exists under the first and fourteenth amendments to the United States Constitution because
no implied cause of action exists under those amendments. Instead, where rights granted by the
first or fourteenth amendments are violated a plaintiff must vindicate those rights through 42
U.S.C. s 1983.”).
Finally, the amended complaint does not indicate whether the claims are against the
individual defendants in their official or individual capacities. (See generally Doc. 25 at 14–20).
Ms. Page states in her response to the motion to dismiss that she intended for each count to be
against the individual defendants in both capacities. (Doc. 28 at 21). “In many cases, the
complaint will not clearly specify whether officials are sued personally, in their official capacity,
or both. The course of proceedings in such cases typically will indicate the nature of the liability
sought to be imposed.” Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (quotation marks
omitted). The amended complaint seeks monetary damages for all of the claims, and also seeks
injunctive relief in the form of reinstatement as a student for the federal claims. (Doc. 25 at 14–
21).
Assuming that no immunity bars any of the claims, Ms. Page could obtain the injunctive
relief she seeks from the individual defendants in their official capacities, but she could not
obtain the injunctive relief she seeks from the individual defendants in their individual capacities.
See Ingle v. Adkins, __ So. 3d __, 2017 WL 5185288, at *2 (Ala. 2017) (“[A] suit for injunctive

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relief against a State official in his or her individual capacity would be meaningless. This is so,
because State officials act for and represent the State only in their official capacities.”) (quoting
Ex parte Dickson, 46 So. 3d 468, 474 (Ala. 2010)) (emphasis in original). As a result, the court
will not construe Counts 1 and 2—the only counts in which Ms. Page seeks injunctive relief—to
assert claims for injunctive relief against the individual defendants in their individual capacities.
In summary, the court construes the amended complaint to raise the following claims
against the following defendants:
•

Counts 1 and 2 (§ 1983 procedural and substantive due process claims): seeking
monetary damages and reinstatement from the Board of Trustees; seeking monetary
damages and reinstatement from the individual defendants in their official capacities;
and seeking only monetary damages from the individual defendants in their
individual capacities

•

Count 3 (negligence claim): seeking monetary damages from Mr. Hicks and
Ms. McMullan in their official and individual capacities

•

Count 4 (negligence claim): seeking monetary damages from Ms. McMullan in her
official and individual capacities

•

Count 5 (negligence claim): seeking monetary damages from Mr. Tofani in his
official and individual capacities

A. Jurisdiction
“A defendant can move to dismiss a complaint under Rule 12(b)(1) for lack of subject
matter jurisdiction by either facial or factual attack.” Stalley, 524 F.3d at 1232. In this case,
Defendants make only a facial attack on the court’s jurisdiction. “A facial attack on the
complaint requires the court merely to look and see if the plaintiff has sufficiently alleged a basis
of subject matter jurisdiction . . . .” Id. at 1232–33 (quoting McElmurray v. Consol. Gov’t of
Augusta-Richmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007) (quotation, citation, and
alterations omitted)).
Defendants contend they are entitled to various forms of immunity from various
combinations of the claims. As for Ms. Page’s federal claims, all Defendants contend they are

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entitled to Eleventh Amendment immunity, and the individual defendants contend they are
entitled to qualified immunity from the claims brought against them in their individual
capacities. (Doc. 26 at 7–19). As for Ms. Page’s state law claims, the individual defendants
contend they are entitled to state sovereign immunity from the claims against them in their
official capacities, and state agent immunity from the claims against them in their individual
capacities. (Id. at 26–30). But because the court concludes that it must dismiss the federal
claims in part for lack of jurisdiction and in part for failure to state a claim, the court will not
address Defendants’ arguments about the various state law immunities.
1. Federal Claims
a. Eleventh Amendment Immunity
“The Eleventh Amendment provides that the ‘Judicial power of the United States shall
not be construed to extend to any suit . . . commenced or prosecuted against one of the . . .
States’ by citizens of another State, U.S. Const., Amdt. 11, and (as interpreted) by its own
citizens.” Lapides v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002). The
amended complaint raises two federal due process claims against each defendant. (Doc. 25 at
14–17). Defendants contend that under the Eleventh Amendment, the court lacks jurisdiction
over those counts. (Doc. 26 at 7–11). Ms. Page responds that Defendants waived their Eleventh
Amendment immunity defense by removing the case to federal court. (Doc. 28 at 10–16). The
court agrees that Defendants waived their Eleventh Amendment immunity from suit in this
federal forum, but concludes that they did not waive their immunity from liability.
The Supreme Court has held that “the State’s act of removing a lawsuit from state court
to federal court waives [Eleventh Amendment] immunity.” Lapides, 535 U.S. at 616. In
Lapides, a plaintiff sued officials of the State of Georgia in state court. Id. Because the State

9

had statutorily waived sovereign immunity from state law suits in state court, it removed the case
to federal court and argued that it was entitled to Eleventh Amendment immunity from suit. Id.
The Supreme Court rejected that contention, in part because “[t]o adopt the State’s Eleventh
Amendment position would permit States to achieve unfair tactical advantages.” Id. at 621.
The Court in Lapides limited its holding to situations in which the lawsuit does not raise a
valid federal claim and the State has waived sovereign immunity from state law suits in state
court. Id. at 616–18. But “[n]otwithstanding the express limitation on its holding, the
Court’s . . . reasoning was in many ways quite broad.” Contour Spa at the Hard Rock, Inc. v.
Seminole Tribe of Florida, 692 F.3d 1200, 1205 (11th Cir. 2012). “[U]nder Lapides’ reasoning,
a state waives its immunity from a federal forum when it removes a case, which voluntarily
invokes the jurisdiction of that federal forum.” Stroud v. McIntosh, 722 F.3d 1294, 1302 (11th
Cir. 2013) (emphasis added). Under Lapides and Stroud, Defendants waived any objection to
this federal forum by removing the case from state court.
But the waiver of Eleventh Amendment forum immunity does not end the inquiry,
because “nothing in Lapides suggests that a state waives any defense it would have enjoyed in
state court—including immunity from liability for particular claims. Lapides specifies that it is
addressing only immunity to a federal forum.” Stroud, 722 F.3d at 1302; see also Alden v.
Maine, 527 U.S. 706, 713 (1999) (“[T]he sovereign immunity of the States neither derives from,
nor is limited by, the terms of the Eleventh Amendment.”). In other words, this court must
determine whether some other form of immunity would bar Ms. Page’s amended complaint if the
case had never been removed—if a state court, instead of a federal court, were deciding the
motion to dismiss on immunity grounds.

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Under Alabama law, Article I, § 14 of the Alabama Constitution protects the State from
liability for state law claims brought against it, and the Eleventh Amendment to the United States
Constitution protects the State from liability for federal claims brought against it. See Ala. State
Univ. v. Danley, 212 So. 3d 112, 124 (Ala. 2016) (“[Section] 14 provides absolute immunity
from suit—and thus liability—for monetary damages based on state-law claims . . . .”); id. at 133
(“[Section] 14 provides [the Alabama State University and individual members of its Board of
Trustees] no immunity from Danley’s federal-law claims. Rather, for [those defendants],
immunity for liability as to Danley’s federal-law claims derives from the Eleventh Amendment
to the United States Constitution.”) (citations omitted).
As discussed above, Defendants’ invocation of this federal forum waives Eleventh
Amendment forum immunity, but it does not necessarily waive Defendants’ immunity from
liability. See Stroud, 722 F.3d at 1301 (“The Supreme Court has repeatedly recognized that
sovereign immunity is a flexible defense with multiple aspects that states can independently
relinquish without affecting others.”); id. (“[A] state, if it chooses, can retain immunity from
liability for a particular claim even if it waives its immunity from suit in federal courts.”). In this
case, the State asserts the same defense it could have asserted in state court. See, e.g., Danley,
212 So. 3d at 133 (indicating that Eleventh Amendment immunity is an available defense to
liability in Alabama state court). As a result, the court must determine whether the Board of
Trustees and the individual defendants in their official capacities are entitled to Eleventh
Amendment immunity from liability on the two federal claims against them. 3
3

The individual defendants in their individual capacities are not entitled to Eleventh
Amendment immunity because, if Ms. Page prevails against them, they, not the State, would be
liable. See Hobbs v. Roberts, 999 F.2d 1526, 1528 (11th Cir. 1993) (“The Eleventh Amendment
protects no personal assets in ‘individual’ or ‘personal’ capacity suits in federal court.”); Jackson
v. Ga. Dep’t of Transp., 16 F.3d 1573, 1577 (11th Cir. 1994) (“The essence of an individual
capacity suit is that the plaintiff is seeking to recover from the individual defendant who is
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The first question the court faces is whether the Board of Trustees and the individual
defendants in their official capacities are considered the State for purposes of Eleventh
Amendment immunity. The court finds that they are. “The Eleventh Circuit has determined that
state universities in Alabama, as arms of the state, are entitled to Eleventh Amendment
immunity.” Harris v. Bd. of Trs. Univ. of Ala., 846 F. Supp. 2d 1223, 1233 (N.D. Ala. 2012)
(citing Harden v. Adams, 760 F.2d 1158, 1163 (11th Cir. 1985)). And “agents and
instrumentalities of the State” are also arms of the State. Manders v. Lee, 338 F.3d 1304, 1308
(11th Cir. 2003) (en banc); see also Cross v. State of Ala., State Dep’t of Mental Health &
Mental Retardation, 49 F.3d 1490, 1503 (11th Cir. 1995) (“Official capacity actions seeking
damages are deemed to be against the entity of which the officer is an agent.”).
The next question is whether an exception to Eleventh Amendment immunity prevents
the State’s invocation of immunity. Three exceptions to Eleventh Amendment immunity exist.
First, Congress may abrogate a State’s immunity. Cross, 49 F.3d at 1502. Second, the State
may consent to be sued or waive its immunity. Id. And third, under the Ex parte Young
doctrine, “official-capacity suits against state officials are permissible . . . when the plaintiff
seeks ‘prospective equitable relief to end continuing violations of federal law.” Lane v. Central
Ala. Comm. Coll., 772 F.3d 1349, 1351 (11th Cir. 2014) (citation altered) (emphases in original)
(quoting Summit Med. Assocs. v. Pryor, 180 F.3d 1326, 1336 (11th Cir. 1999)); see also Ex parte
Young, 209 U.S. 123 (1908).

personally liable for the judgment.”). That conclusion stands even if the State of Alabama
provides insurance coverage for judgments against state officials sued in their individual
capacities. See Jackson, 16 F.3d at 1578 (“We conclude that the existence of a voluntarily
established liability trust fund does not make the state the real party in interest in this action and
that the trust fund does not extend the state’s Eleventh Amendment immunity to its employees
sued in their individual capacity.”) (footnote omitted).
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“Congress has not abrogated Eleventh Amendment immunity in Section 1983 cases,”
Quern v. Jordan, 440 U.S. 332, 338 (1979), and the State of Alabama has not waived its
immunity to liability. See Ala. Const. art. I, § 14 (“[T]he State of Alabama shall never be made a
defendant in any court of law or equity.”). Thus, neither of the first two exceptions applies.
Those are the only exceptions that permit claims for monetary damages, so the Eleventh
Amendment bars Ms. Page’s federal claims for monetary damages from the State, i.e., from the
Board of Trustees and the individual defendants in their official capacities.
But Ms. Page also seeks injunctive relief from both the Board of Trustees and the
individual defendants in their official capacities, in the form of reinstatement as a student at
UAB. (See Doc. 25 at 14–17). The Ex parte Young doctrine permits lawsuits against state
officials “when the plaintiff seeks prospective equitable relief to end continuing violations of
federal law.” Lane, 772 F.3d at 1351 (quotation marks omitted) (emphases in original).
Ms. Page’s request for injunctive relief from the Board of Trustees—an arm of the
State—must fail because the Ex parte Young exception “has no application in suits against the
States and their agencies, which are barred regardless of the relief sought.” Puerto Rico
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). But her request for
injunctive relief from the individual defendants in their official capacities falls within the Ex
parte Young exception. 4 The Eleventh Circuit has held that “requests for reinstatement
constitute prospective injunctive relief that fall within the scope of the Ex parte Young exception
and, thus, are not barred by the Eleventh Amendment.” Lane, 772 F.3d at 1351.

4

In their first motion to dismiss, Defendants argued that the individual defendants lack
the authority to grant the injunctive relief Ms. Page seeks. (Doc. 14 at 6 n.3). The court granted
that motion on other grounds. (Doc. 20). Defendants do not repeat the lack-of-authority
argument in their current motion to dismiss, so the court does not address it.
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In summary, the Eleventh Amendment bars Counts 1 and 2—the federal claims—against
the Board of Trustees. Because Ms. Page raises no other claims against the Board of Trustees,
the court WILL DISMISS WITHOUT PREJUDICE the Board of Trustees for lack of
jurisdiction.
The Eleventh Amendment also bars Counts 1 and 2 against the individual defendants to
the extent that those counts seek monetary damages from them in their official capacities. The
court WILL DISMISS WITHOUT PREJUDICE Counts 1 and 2 against the individual
defendants in their official capacities to the extent those counts seek monetary damages.
But under the Ex parte Young doctrine, the Eleventh Amendment does not bar Ms. Page’s
requests for injunctive relief from the individual defendants in their official capacities.
Defendants contend, in the alternative, that Counts 1 and 2 fail to state a claim. The court will
address that argument in the next section, which also addresses whether the individual
defendants are entitled to qualified immunity from the federal claims brought against them in
their individual capacities for monetary damages.
b. Qualified Immunity
The individual defendants in their individual capacities contend that they are entitled to
qualified immunity as to Counts 1 and 2—the federal claims—insofar as those counts seek
monetary damages. (Doc. 26 at 11–19).
Qualified immunity protects government officials performing discretionary functions
from suit in their individual capacities unless the official violates “clearly established statutory or
constitutional rights of which a reasonable person would have known.” Hope v. Pelzer, 536 U.S.
730, 739 (2002) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The purpose of this
immunity is to allow government officials to carry out their discretionary duties without the fear

14

of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or
one who is knowingly violating the federal law . . . .” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th
Cir. 2002) (citation and quotation marks omitted). The court must “compare the acts of each
defendant to analogous case law to determine whether each defendant has violated a clearly
established constitutional right.” Corey Airport Servs. v. Decosta, 587 F.3d 1280, 1288 n.6 (11th
Cir. 2009).
To prove that a public official is entitled to qualified immunity, the official “must first
prove that he was acting within the scope of his discretionary authority when the allegedly
wrongful acts occurred.” Penley ex rel. Estate of Penley v. Eslinger, 605 F.3d 843, 849 (11th
Cir. 2010) (quoting Lee, 284 F.3d at 1194). Accepting as true the facts alleged in Ms. Page’s
amended complaint, it appears the individual defendants were acting in the scope of their
discretionary authority when they took the allegedly wrongful acts because their “actions were
undertaken pursuant to the performance of [their] duties and within the scope of [their]
authority.” Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) (quotation marks omitted).
“Once the defendant establishes that he was acting within his discretionary authority, the
burden shifts to the plaintiff to show that qualified immunity is not appropriate.” Id. (quoting
Lee, 284 F.3d at 1194). The question whether qualified immunity is appropriate is, itself, a two
part test that the court may address in either order. See Pearson v. Callahan, 555 U.S. 223, 236
(2009). One part of the test is “whether [the] plaintiff’s allegations, if true, establish a
constitutional violation.” Hope v. Pelzer, 536 U.S. 730, 736 (2002) (quotation marks and
citation omitted). The second part is whether the constitutional violation was clearly established
at the time of the alleged wrongful conduct. Pearson, 555 U.S. at 816. The public official is

15

entitled to qualified immunity unless the plaintiff establishes both parts of the test; failure to
establish either prong dooms the plaintiff’s case.
“A government official’s conduct violates clearly established law when, at the time of the
alleged conduct, the contours of the right are sufficiently clear that every ‘reasonable official
would have understood that what he is doing violates that right.’” Mikko v. City of Atlanta, 857
F.3d 1136, 1146 (11th Cir. 2017) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)). The
court “look[s] only to binding precedent—holdings of cases drawn from the United States
Supreme Court, [the Eleventh Circuit], or the highest court of the state where the [conduct] took
place.” Id. (last alteration in original) (quotation marks omitted). Courts “do not require a case
directly on point, but existing precedent must have placed the statutory or constitutional question
beyond debate.” Ashcroft, 563 U.S. at 741.
i. Count 1: Procedural Due Process
Count 1 asserts that the individual defendants in their individual capacities violated
Ms. Page’s procedural due process rights by dismissing her without following the School of
Nursing’s procedures for dismissing a student. (Doc. 25 at 14–15).
“[A] § 1983 claim alleging the denial of procedural due process requires proof of three
elements: (1) a deprivation of constitutionally-protected liberty or property interest; (2) state
action; and (3) constitutionally-inadequate process.” Cook v. Randolph County, Ga., 573 F.3d
1143, 1148–49 (11th Cir. 2009) (quoting Grayden v. Rhodes, 345 F.3d 1225, 1232 (11th Cir.
2003)).
Because the court must address each individual defendant separately, the court will
describe the alleged actions of each defendant. See Corey Airport Servs., 587 F.3d at 1288 n.6.
According to Ms. Page’s amended complaint:

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•

Mr. Hicks sent the three negative clinical evaluations, including one that was about
another nursing student, to Ms. McMullan. (Doc. 25 at 5).

•

Ms. McMullan made a unilateral decision to dismiss Ms. Page based on the three
negative evaluations. (Doc. 25 at 12). On August 28, 2016, she called a meeting to
be held on August 29, 2016, with Ms. Page, Mr. Tofani, and several other
unidentified people. (Id. at 5–6). At the meeting, Ms. McMullan informed Ms. Page
that she would be receiving an F in her clinical course and was dismissed from the
Program “effective immediately.” (Id. at 5–6). Ms. McMullan did not provide
Ms. Page with any pre- or post-meeting written notice of the people who would be
present at the meeting, the proposed dismissal, the reasons for the proposed dismissal,
or the negative evaluations. (Id. at 5).
On October 5, 2016, about five weeks after the August meeting, Ms. McMullan wrote
a memorandum outlining the three negative evaluations. (Id. at 9). Ms. McMullan
gave that memorandum to the Senior Associate Dean for Academic Affairs, but not to
Ms. Page. (Id.). The Senior Associate Dean eventually sent Ms. McMullan’s
memorandum to Ms. Page. (Id.).

•

Mr. Tofani was present at the August 29, 2016 meeting during which Ms. Page was
informed of her dismissal from the Program. (Doc. 25 at 5–6). After Ms. McMullan
informed Ms. Page of her dismissal, he gave Ms. Page his business card and asked
her to call him when she was ready to discuss her options to appeal the dismissal. (Id.
at 6). Mr. Tofani did not provide Ms. Page with any pre- or post-meeting written
notice of failing the clinical course or being dismissed from the Program. (Id.).
On September 16, 2016, about two weeks after the August meeting, Ms. Page met
again with Mr. Tofani and a non-party, Director of Student Affairs John Updegraff.
(Doc. 25 at 7). At the meeting, Mr. Tofani represented both that Ms. Page had been
dismissed from the Program and that she had not yet been dismissed, but that she
would be dismissed at the end of the semester. (Id.). He also stated that she would
not be reinstated. (Id.).
On October 27, 2016, Mr. Tofani emailed Ms. Page a letter describing a “‘written
investigative report discussing allegations of misconduct’ against Plaintiff Page” and
explaining the appeals process. (Doc. 25 at 10). Ms. Page responded to his email by
sending a letter telling him that the School and its personnel had refused to follow the
procedural steps for addressing “academic misconduct.” (Id. at 11). He sent that
letter on to the Dean of the Nursing School, Dr. Doreen Harper. (Id. at 10–11).

Based on those allegations, Mr. Hicks is entitled to qualified immunity. Ms. Page alleges
only that he provided negative evaluations about her performance to Ms. McMullan. That
allegation does not constitute a “deprivation of constitutionally-protected liberty or property

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interest.” Cook, 573 F.3d at 1148–49. Professors and supervisors must be allowed to provide
evaluations of students to school administrators. What the school administrators do with those
evaluations is a different issue, and whether Ms. McMullan and Mr. Tofani are entitled to
qualified immunity is a closer question.
Ms. Page does not assert that Mr. Tofani made the decision to dismiss her from the
Program; she alleges only that Ms. McMullan made that “unilateral” decision. (Doc. 25 at 12).
But she does allege that Ms. McMullan and Mr. Tofani were involved in the meeting during
which they informed Ms. Page that she was being dismissed, and that they were involved in the
post-dismissal actions taken by the School and other administrators. (Id. at 7–11). At the motion
to dismiss stage, that is enough to allege that Mr. Tofani was involved in the purported
deprivation. So the court must determine whether, taken as true, Ms. Page alleges facts showing
that Ms. McMullan’s and Mr. Tofani’s actions: (1) deprived her of a constitutionally-protected
liberty or property interest; (2) constituted state action; and (3) provided constitutionally
inadequate process. Cook, 573 F.3d at 1148–49. The court concludes that, taken as true, the
amended complaint asserts a deprivation of a constitutionally protected property interest, but it
does not assert constitutionally inadequate process because the post-deprivation process cured
any inadequate pre-deprivation process.
In Barnes v. Zaccari, the Eleventh Circuit held that when a State’s official regulations
create a “legitimate claim of entitlement to remain enrolled” at a state university, the student has
a constitutionally protected property interest in that enrollment. 669 F.3d 1295, 1304 (11th Cir.
2012). In that case, the State’s official regulations limited the university’s authority to discipline
students for misconduct unless disciplinary sanctions were “for cause.” Id.

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As in Barnes, in this case, Ms. Page alleges that the School of Nursing Student Handbook
requires the School and its personnel to follow certain procedures before taking action against a
student for academic misconduct. (Doc. 25 at 12). And as in Barnes, it appears that the Student
Handbook creates a “legitimate claim of entitlement to remain enrolled” until the decisionmakers follow those procedures. Barnes, 669 F.3d at 1304. Thus, at this stage, it appears that
Ms. Page’s amended complaint adequately alleges that she had a property interest in remaining
enrolled at the School of Nursing until the School followed the procedures laid out in the Student
Handbook.
Defendants do not contest that Ms. Page adequately alleged the second element of a
procedural due process claim—state action. See Cook, 573 F.3d at 1148–49. So the court
proceeds to the third element—constitutionally inadequate process. Id. A student dismissed
from a public school for academic misconduct is entitled to less process than a student dismissed
for disciplinary reasons. Haberle v. Univ. of Ala., 803 F.2d 1536, 1539 (11th Cir. 1986).
“Formal hearings are not required in academic dismissals. Rather, the Supreme Court held that
the decision-making process need only be ‘careful and deliberate.’” Id. (quoting Bd. of Curators,
Univ. of Mo. v. Horowitz, 435 U.S. 78, 85 (1978)). The Supreme Court explained that academic
dismissals require less process because “the determination whether to dismiss a student for
academic reasons requires an expert evaluation of cumulative information and is not readily
adapted to the procedural rules of judicial or administrative decisionmaking.” Horowitz, 435
U.S. at 90.
Taking as true the allegations in Ms. Page’s amended complaint, she arguably did not
receive constitutionally adequate pre-dismissal process. The dismissal that Ms. Page describes
was not “careful and deliberate,” but rushed and, perhaps, confused. Mr. Hicks received some

19

negative evaluations, one of which was not about Ms. Page, between August 18 and August 24,
and forwarded them to Ms. McMullan. (Doc. 25 at 4–5, 9). By August 28, Ms. McMullan and,
apparently, Mr. Tofani, had decided to dismiss Ms. Page based on those evaluations, which they
had not independently investigated or shown to Ms. Page. (Id. at 5–6, 12). And the court lacks
any information about the content of the two evaluations that were about Ms. Page, so the court
cannot determine whether the hasty nature of the pre-dismissal process was warranted. Taken in
the light most favorable to Ms. Page, that is not “careful and deliberate.”
Nevertheless, the court finds that Ms. Page fails to state a procedural due process claim.
“[O]nly when the state refuses to provide a process sufficient to remedy the procedural
deprivation does a constitutional violation actionable under section 1983 arise.” McKinney v.
Pate, 20 F.3d 1550, 1557 (11th Cir. 1994) (en banc). “This rule . . . recognizes that the state
must have the opportunity to remedy the procedural failings of its subdivisions and agencies in
the appropriate fora—agencies, review boards, and state courts—before being subjected to a
claim alleging a procedural due process violation.” Cotton v. Jackson, 216 F.3d 1328, 1331
(11th Cir. 2000) (quotation marks omitted).
Ms. Page alleges that, after her dismissal, she corresponded at length with different
administrators, and the School eventually held a hearing at which she was permitted to present
evidence and argument. (Doc. 25 at 12–13). She takes issue with the adequacy of that hearing,
but, because this was an academic dismissal, she was not entitled to any hearing at all, as long as
the process afforded her was “careful and deliberate.” Horowitz, 435 U.S. at 90; Haberle, 803
F.2d at 1539. And nothing in the amended complaint indicates that the panel hearing was
anything other than “careful and deliberate.”

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Ms. Page does not assert that Ms. McMullan or Mr. Tofani interfered with the panel
hearing or the witnesses that she would have liked to call, or that the panel members made their
decision based on anything other than records of her academic performance, including the two
negative evaluations that were indisputably about her. To the extent she contends that the
hearing was inadequate because the School failed to follow its own rules for the appeals process,
the Supreme Court has rejected the assertion that, in an academic dismissal case, a school’s
failure to follow its own rules may amount to a procedural due process violation. See Horowitz,
435 U.S. at 92 n.8 (“[Plaintiff] also contends that [defendants] failed to follow their own rules
respecting evaluation of medical students and that this failure amounted to a constitutional
violation . . . . We disagree with . . . [the plaintiff]’s . . . legal contention[ ] . . . . [The cases on
which the plaintiff] relied[ ] enunciate principles of federal administrative law rather than of
constitutional law binding upon the States.”) (citation altered); Rollins v. Bd. of Trustees of the
Univ. of Ala., 647 F. App’x 924, 938 (11th Cir. 2016) (unpublished) (stating that the plaintiff
received “significantly more process than the Constitution requires,” because “[e]ven though the
Supreme Court has held that a formal hearing is not necessary for academic decisions, the
university held a formal hearing during which [Plaintiff] testified on his own behalf, called
witnesses, and was allowed to have an adviser present”). Although the process was not perfect,
it was constitutionally adequate.
Even if Ms. Page’s allegations stated a claim for a violation of procedural due process,
the court finds that such a right was not clearly established in 2016, when Ms. Page was
dismissed from the Program. Ms. Page has not pointed to any cases holding or placing beyond
debate that Ms. McMullan’s and Mr. Tofani’s conduct in this case violated her procedural due
process right. See Ashcroft, 563 U.S. at 741. The cases on which Ms. Page relies are

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disciplinary misconduct cases, which use a different standard from academic dismissals. (See
Doc. 28 at 17–19); Goss v. Lopez, 419 U.S. 565, 569 (1975) (addressing dismissals for
“disruptive or disobedient conduct”); Barnes, 669 F.3d at 1298 (dismissing a student because the
president of the university concluded that he presented a “clear and present danger”); Dixon v.
Ala. State Bd. of Ed., 294 F.2d 150, 151 (5th Cir. 1961) (discussing whether students at a public
university can be “expelled for misconduct” without notice and an opportunity for a hearing).
Nor has this court’s independent research located any cases clearly establishing that
Ms. McMullan’s and Mr. Tofani’s conduct in this case violated Ms. Page’s procedural due
process right. The Supreme Court’s Horowitz decision requires only that the decision to dismiss
a student be “careful and deliberate”; it does not say what constitutes “careful and deliberate”
decisionmaking, except to reject the requirement that it include a hearing. Horowitz, 435 U.S. at
85, 90. And the Eleventh Circuit’s Haberle decision echoed the holding that no hearing is
required where the student “was given substantial opportunity to complain to all relevant
decision-makers.” 803 F.2d at 1539.
Ms. Page was able to complain about her dismissal and the School responded, even if it
was after the fact. She was permitted to appear at a hearing to defend her academic progress and
contest the negative evaluation that was about a different student. The court has already
concluded that Ms. Page failed to state a procedural due process claim based on these facts, but
even if she did state a claim, the facts alleged in this case, at best, implicate an open question
about the level of process due a student dismissed for academic reasons. And state officials are
entitled to qualified immunity from claims raising open questions; to avoid qualified immunity,
“existing precedent must have placed the statutory or constitutional question beyond debate.”
Ashcroft, 563 U.S. at 741.

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The court WILL DISMISS WITH PREJUDICE Count 1 to the extent it seeks monetary
damages from the individual defendants in their individual capacities, because they are entitled
to qualified immunity. And because the court concludes that Count 1 fails to state a claim, the
court also WILL DISMISS WITH PREJUDICE Count 1 to the extent it seeks injunctive relief
from the individual defendants in their official capacities.

ii. Count 2: Substantive Due Process
Count 2 asserts that the individual defendants in their individual capacities violated
Ms. Page’s substantive due process rights by dismissing her intentionally, willfully, maliciously,
with deliberate indifference, and/or with a reckless disregard for the natural and probable
consequences of their act. (Doc. 25 at 16–17).
In the academic dismissal context, the Supreme Court has described the standard for a
substantive due process claim as follows:
When judges are asked to review the substance of a genuinely academic decision,
such as this one, they should show great respect for the faculty’s professional
judgment. Plainly, they may not override it unless it is such a substantial
departure from accepted academic norms as to demonstrate that the person or
committee responsible did not actually exercise professional judgment.
Regents of Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (footnote omitted). The Eleventh
Circuit has suggested, by negative implication, that “an improper motive” could be another basis
for a substantive due process claim relating to a student’s academic dismissal. See Haberle, 803
F.2d at 1540.
Ms. Page does not allege that any of the individual defendants had an improper motive
for dismissing her; the assumption underlying her entire complaint is that they acted negligently,
not with bad faith. Even though Ms. Page makes passing reference to the individual defendants

23

acting wantonly, that reference is conclusory and unsupported by factual allegations indicating a
an improper motive. “[T]he Federal Rules do not require courts to credit a complaint’s
conclusory statements without reference to its factual context. . . . [they do] not empower [a
plaintiff] to plead the bare elements of his cause of action . . . and expect his complaint to survive
a motion to dismiss.” Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009).
So that leaves the question whether the dismissal was “such a substantial departure from
accepted academic norms as to demonstrate that the person or committee responsible did not
actually exercise professional judgment.” Ewing, 474 U.S. at 225. Under the facts as alleged,
Ms. Page has not stated a claim rising to that level. Even if the defendants negligently used an
evaluation about a different student in their decision-making process, Ms. Page does not contest
that the two other negative evaluations were about her, or claim that those two negative
evaluations were false or wrong. The court will not interfere with a school’s decision to dismiss
a nursing student who has received two negative clinical evaluations; that decision rests within
the decision-makers’ professional judgment.
Because Ms. Page has not stated a substantive due process claim relating to her academic
dismissal, the individual defendants are entitled to qualified immunity from that claim. The
court WILL DISMISS WITH PREJUDICE Count 2, seeking monetary damages from the
individual defendants in their individual capacities. And because the court concludes that
Count 2 fails to state a claim, the court also WILL DISMISS WITH PREJUDICE Count 2 to the
extent it seeks injunctive relief from the individual defendants in their official capacities.
2. State Law Negligence Claims
Because the court concludes that Counts 1 and 2, the only federal claims, must be
dismissed, that leaves only the state law negligence claims asserted in Counts 3, 4, and 5. The

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Supreme Court has noted that “if the federal claims are dismissed before trial, . . . the state
claims should be dismissed as well.” See United Mine Workers of Am. v. Gibbs, 383 U.S. 715,
726 (1966). The Eleventh Circuit has also stated that “[t]he decision to exercise supplemental
jurisdiction over pendant state claims rests within the discretion of the district court. We have
encouraged district courts to dismiss any remaining state claims when, as here, the federal claims
have been dismissed prior to trial.” Raney v. Allstate Ins. Co., 370 F.3d 1086, 1088–89 (11th
Cir. 2004) (citations omitted) (emphasis added).
In light of the dismissal of all of Ms. Page’s federal claims and the Eleventh Circuit’s
encouragement to dismiss state law claims when the federal claims have been dismissed before
trial, the court declines to exercise supplemental jurisdiction over the state law claims. The court
WILL DISMISS WITHOUT PREJUDICE the state law claims.
III.

CONCLUSION
The court finds that the Board of Trustees is entitled to Eleventh Amendment immunity

as to all of the claims brought against it, regardless of the form of relief requested; the individual
defendants in their official capacities are entitled to Eleventh Amendment immunity from
Counts 1 and 2 as to the request for monetary damages, but not as to the request for injunctive
relief; Counts 1 and 2 fail to state a claim; and the individual defendants in their individual
capacities are entitled to qualified immunity as to Counts 1 and 2 because Ms. Page’s allegations
fail to establish that they violated her constitutional due process rights.
Consistent with those findings, the court WILL GRANT Defendants’ motion to dismiss
the amended complaint. The court WILL DISMISS WITHOUT PREJUDICE for lack of
jurisdiction: (1) the Board of Trustees as a defendant; (2) Counts 1 and 2, to the extent they seek
monetary damages from the individual defendants in their official capacities; and (3) Counts 3, 4,

25

and 5. The court WILL DISMISS WITH PREJUDICE: (1) Counts 1 and 2, to the extent that
they seek injunctive relief from the individual defendants in their official capacities, for failure to
state a claim; and (2) Counts 1 and 2, to the extent they seek monetary damages from the
individual defendants in their individual capacities, because those defendants are entitled to
qualified immunity.
The court will enter a separate order consistent with this opinion.
DONE and ORDERED this 12th day of February, 2018.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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