Judeh v. Louisiana State University System et al
Filing
60
ORDER AND REASONS - the Court GRANTS the defendants'motion for summary judgment.. Signed by Chief Judge Sarah S. Vance on 10/10/13.(jjs, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
HILMI JUDEH
CIVIL ACTION
VERSUS
NO: 12-1758
LOUISIANA STATE UNIVERSITY
SYSTEM, et al.
SECTION: R(4)
ORDER AND REASONS
Before the Court is the motion for summary judgment of
defendants Dr. Stephanie Tortu and Dr. Donna Williams.
For the
reasons that follow, the Court GRANTS defendants' motion.
I.
BACKGROUND
This dispute stems from plaintiff Hilmi Judeh's dismissal
from the Louisiana State University School of Public Health
("LSU-SPH"). Plaintiff enrolled in a Master's of Public Health
program in the summer of 2010.1
In the spring semester of 2011,
plaintiff withdrew for personal reasons.
Upon his return to the
LSU-SPH in the summer of 2011, plaintiff secured an internship at
the Louisiana Office of Public Health ("OPH") in order to fulfill
the degree requirement that he obtain 200 hours of practice
experience.2
He began his internship on June 2, 2011.3
Some
time before June 24, 2011, plaintiff was accused of verbal
1
R. Doc. 1 at 4.
2
R. Doc. 52-3 at 1-2; R. Doc. 55-1 at 1.
3
R. Doc. 52-3 at 2; R. Doc. 55-1 at 1.
harassment by a fellow intern.4
Plaintiff also was "having
problems" with his immediate supervisor, Megan Jespersen,
involving plaintiff's alleged failure to complete tasks, to
maintain patient confidentiality, to follow instructions, to
respect authority, and to use the internet appropriately.5
On
June 24, 2011, plaintiff sent an email to Dr. Donna Williams,
Practice Experience Course Director for the LSU-SPH, asking to
switch practice sites.6
In the email, plaintiff indicated that
he had been falsely accused of misconduct and that there was
insufficient work for him at the site.7
He also indicated that
Jespersen had advised him to seek a different placement.8
Plaintiff thereafter secured an alternative internship within the
LSU-SPH rather than returning to the OPH.9
Once he concluded his internship with the OPH, plaintiff
posted a number of comments to his Facebook page in which he
threatened to return to the OPH to embarrass the intern who
accused him of harassment and to destroy the work plaintiff had
4
R. Doc. 52-3 at 2; R. Doc. 52-4 at 49-51; R. Doc. 55-1
at 1.
5
R. Doc. 52-3 at 2; R. Doc. 55-1 at 1.
6
R. Doc. 52-5 at 9.
7
Id.
8
Id.
9
R. Doc. 55-2 at 1.
2
completed during his internship.10
Specifically, plaintiff
stated on Sunday, June 26, 2011, that he was "going to go into my
old internship site tomorrow delete the database I created and
toss all the interviews I did in the paper shredder."11
The
following Monday, despite having agreed with Jespersen not to
return to the OPH, plaintiff returned unannounced.12
When OPH learned of plaintiff's Facebook comments, OPH
officials sought a meeting with LSU-SPH administrators.13
Officials from both institutions met on July 1, 2011, and OPH
officials provided the LSU-SPH administrators with copies of
plaintiffs' Facebook threats.14
Before the Fourth of July
holiday weekend, a number of LSU-SPH administrators continued
their discussions regarding plaintiff's misconduct.15
On the morning of July 5, 2011, the Associate Dean for
Academic Affairs, Dr. Stephanie Tortu, called the plaintiff into
her office to discuss the Facebook posts.16
Dr. Williams was
10
R. Doc. 52-4 at 37-41.
11
R. Doc. 52-3 at 2-3; R. Doc. 55-1 at 2.
12
R. Doc. 52-3 at 3; R. Doc. 55-1 at 2.
13
R. Doc. 52-3 at 3; R. Doc. 55-1 at 2.
14
R. Doc. 52-3 at 3; R. Doc. 55-1 at 2.
15
R. Doc. 52-3 at 3; R. Doc. 55-1 at 2.
16
R. Doc. 55-2 at 1.
3
also present at the meeting.17
During the meeting, Drs. Tortu
and Williams informed the plaintiff that he faced discipline for
the threats made on Facebook.18
Drs. Tortu and Williams contend
that they showed the plaintiff printouts of the Facebook posts
and offered him a chance to respond to the charges.19
They
allege that the plaintiff only confirmed his guilt by insisting
that he was not really going to carry out the threats.20
The
defendants state that Dr. Tortu then expelled the plaintiff for
making threats to destroy government property.21
Dr. Tortu
alleges that she handed the plaintiff a copy of Chancellor's
Memorandum 56, which delineates the appeals process, and informed
him of his right to appeal.22
Plaintiff disputes the defendants' account of their meeting.
He alleges that upon entering Dr. Tortu's office, Dr. Tortu
informed him that he would be dismissed from the LSU-SPH for
"saying that [he was] going to destroy data at [his] practice
experience."23
Plaintiff asserts that Dr. Tortu refused to
17
Id.
18
R. Doc. 52-3 at 3; R. Doc. 55-1 at 2.
19
R. Doc. 52-6 at 1; R. Doc. 52-7 at 1.
20
R. Doc. 52-6 at 1; R. Doc. 52-7 at 2.
21
R. Doc. 52-6 at 1; R. Doc. 52-7 at 2.
22
R. Doc. 52-6 at 2.
23
R. Doc. 55-2 at 1.
4
discuss the matter when he asked "Are we going to talk about
this?" and that he was not given an opportunity to explain
himself.24
He also contends that he received only a "redacted"
version of Memorandum 56, which was missing the information
relating to student rights and the appeals process.25
He also
disputes that he was given a copy of the Facebook posts in
question at the meeting, although he admits that he knew the
posts were the reason for his dismissal.26
Later that day, plaintiff sent an email to Dr. Elizabeth
Fontham, Dean of the LSU-SPH, objecting to his dismissal and
alleging that Dr. Tortu denied him due process by not allowing
him to explain the circumstances behind his "statement of
frustration."27
In the email, plaintiff admitted to making the
statements on Facebook but argued that he "was only expressing
anger at an injustice [he] perceived to have received from [Megan
Jespersen] in which she reduced [his] hours for practice
experience from 67 hours to 57."28
He went on to assure Dean
Fontham that he in no way acted on the threats, as he knew such
24
Id. at 1-2; R. Doc. 52-5 at 3.
25
Id. at 1.
26
Id.; R. Doc. 52-4 at 36.
27
R. Doc. 52-5 at 3.
28
Id.
5
actions "could have repercussions beyond the academic domain and
could actually lead to criminal litigation."29
Dean Fontham forwarded plaintiff's email to Drs. Tortu and
Williams, indicating that she would encourage the plaintiff to
follow the appeals process in Memorandum 56, but that she would
first like to hear the defendants' comments on the email.30
Dr.
Tortu responded: "I think his action on facebook was very
serious, even in jest (how were we to know it was in jest?).
Plus, he has a history of inappropriate behavior toward women."31
When Dean Fontham asked Dr. Tortu if she had discussed the
harassment allegations as well as the Facebook threats with the
plaintiff and given him an opportunity to "present his side," Dr.
Tortu replied: "His only 'side' was to say he meant his threat in
jest!
I didn't discuss the sexual harassment stuff because it
was already discussed at the Office of Public Health.
That's why
he was removed from OPH and working on Donna[ Williams's]
project."32
Dr. Williams also replied, confirming that the
plaintiff "was given the opportunity to present his side."33
29
Id.
30
Id. at 2.
31
Id.
32
Id.
33
Id.
6
Three days after his dismissal, plaintiff sent a letter to
Dr. Tortu requesting an appeal.34
Dr. Tortu forwarded the letter
to Joseph Moerschbaecher, Vice Chancellor for Academic Affairs at
the LSU Health Sciences Center, but it is unclear what action, if
any, was immediately taken.35
On July 12, 2011, plaintiff
received a letter from Dr. Tortu, documenting plaintiff's
expulsion.
It read in part:
Only July 5, 2011, Dr. Donna Williams and I met with you to
inform you that were [sic] formally dismissed from the LSU
School of Public Health for inappropriate and grossly
unprofessional behavior, both on campus and at your practice
experience site at the Louisiana Office of Public Health. I
provided you with a copy of CM-56 for your information. We
were aware that several complaints were made by female
students and staff at the Office of Public Health regarding
your inappropriate behavior. After you were reprimanded,
you posted remarks on your Facebook page indicating that, in
retaliation, you intended to destroy data belonging to the
Louisiana Office of Public Health, as well as embarrass a
staff member during a meeting. The Director of the Office
of Public Health STD/HIV Program, Dr. DeAnn Gruber, notified
the course director for PUBH 6800, the practice experience
(Dr. Donna Williams) and your advisor (Dr. Ariane Rung)
about your behavior. After discussion, we considered your
actions serious enough to warrant immediate dismissal. Dean
Fontham was aware of these events, and she concurred with
this decision.36
On July 17, 2011, plaintiff emailed Vice Chancellor
Moerschbaecher to request an appointment to discuss his
34
R. Doc. 52-6 at 2; R. Doc. 52-4 at 48.
35
R. Doc. 52-6 at 2.
36
R. Doc. 55-3 at 1.
7
expulsion.37
Dean Fontham relayed the details of the expulsion
to Vice Chancellor Moerschbaecher in anticipation of the meeting,
noting that "[s]ince his comments were on face book [sic] for
many to see there was no issue as to whether he did or didn't
threaten to destroy [OPH] data.
His defense is that he is very
excitable and he didn't really mean that he would destroy their
data."38
Defendants allege, and the plaintiff admits, that plaintiff
"had an appeal hearing with Vice Chancellor Joseph
Moerschbaecher, III," and that during the appeal "plaintiff was
given another chance to present his defense."39
In his
deposition, plaintiff claimed that Vice Chancellor Moerschbaecher
told him, "[y]ou said you were going to destroy data and that's
why you were expelled. . . . If you said it, you're still
expelled.
If you didn't say it, you can come back to school."40
Vice Chancellor Moerschbaecher offered plaintiff the option
to resign from school to avoid any and all discipline.41
On July
29, 2011, plaintiff sent an email to Vice Chancellor
Moerschbaecher's assistant, indicating that he wished to "drop
37
R. Doc. 52-5 at 16.
38
Id.
39
R. Doc. 52-3 at 4;
40
R. Doc. 52-4 at 75.
41
R. Doc. 52-3 at 4; R. Doc. 55-1 at 3.
R. Doc. 55-1 at 3.
8
[his] appeal and take the option of resigning."42
admits that he "freely chose to resign."43
Plaintiff
He later enrolled at
the University of New Orleans, where he completed a Master's in
Science and Healthcare Management.44
He alleges that this
program is not an equivalent of the SPH's Master's in Public
Health Program, and that he was able to transfer only a "minimal
number" of credit hours.45
Plaintiff then brought an action under 42 U.S.C. § 1983
against Elizabeth Fontham, Stephanie Tortu, Donna Williams,
Ariane Rung, and Joseph Moerschbaecher in their official and
individual capacities, as well as against the LSU System and the
LSU Health Sciences Center.
He claimed that his First, Fifth,
and Fourteenth Amendment rights were violated by his dismissal
from the school.
Defendants filed motions to dismiss.
Plaintiff
acquiesced in the dismissal of his claims against the individual
defendants in their official capacities, indicating that he was
seeking only monetary damages rather than prospective or
injunctive relief.46
The Court granted defendants' motions in
part, but denied the motions as to plaintiff's procedural due
42
R. Doc. 52-5 at 18.
43
R. Doc. 52-3 at 4; R. Doc. 55-1 at 3.
44
R. Doc. 52-4 at 13.
45
R. Doc. 1 at 7.
46
R. Doc. 30 at 1; R. Doc. 23 at 1.
9
process claims against Drs. Tortu and Williams.
The defendants
now have moved for summary judgment on plaintiff's due process
claim.
II.
STANDARD
Summary judgment is warranted when “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.” Fed. R. Civ.
P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986);
Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
When assessing whether a dispute as to any material fact exists,
the Court considers “all of the evidence in the record but
refrains from making credibility determinations or weighing the
evidence.” Delta & Pine Land Co. v. Nationwide Agribusiness Ins.
Co., 530 F.3d 395, 398 (5th Cir. 2008). The Court must draw all
reasonable inferences in favor of the nonmoving party, but
“unsupported allegations or affidavits setting forth ultimate or
conclusory facts and conclusions of law are insufficient to
either support or defeat a motion for summary judgment.” Galindo
v. Precision Am. Corp., 754 F.2d 1212, 1216 (5th Cir. 1985)
(internal quotation marks omitted).
If the dispositive issue is one on which the moving party
will bear the burden of proof at trial, the moving party “must
come forward with evidence that would entitle it to a directed
10
verdict if the evidence went uncontroverted at trial.” Int’l
Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1263-64 (5th
Cir. 1991)(citation omitted). The nonmoving party can then defeat
the motion by either countering with sufficient evidence of its
own, or “showing that the moving party’s evidence is so sheer
that it may not persuade the reasonable fact-finder to return a
verdict in favor of the moving party.” Id. at 1265.
If the dispositive issue is one on which the nonmoving party
will bear the burden of proof at trial, the moving party may
satisfy its burden by merely pointing out that the evidence in
the record is insufficient with respect to an essential element
of the nonmoving party’s claim. See Celotex, 477 U.S. at 325. The
burden then shifts to the nonmoving party, who must, by
submitting or referring to evidence, set out specific facts
showing that a genuine issue exists. See id. at 324.
The nonmovant may not rest upon the pleadings, but must
identify specific facts that establish a genuine issue for trial.
Id. at 325. See also Little, 37 F.3d at 1075 (“Rule 56 ‘mandates
the entry of summary judgment, after adequate time for discovery
and upon motion, against a party who fails to make a showing
sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden
of proof at trial.’”) (citing Celotex, 477 U.S. at 332).
11
III. DISCUSSION
Defendants contend that plaintiff has failed to allege a due
process violation that would overcome their defense of qualified
immunity.
It is well established that qualified immunity shields
public officials from suit and liability under § 1983, "unless
their conduct violates clearly established statutory or
constitutional rights of which a reasonable person would have
known." Babb v. Dorman, 33 F.3d 472, 477 (5th Cir. 1994). When a
defendant invokes qualified immunity, the plaintiff bears the
burden of demonstrating that the defense is inapplicable through
a two-prong test. McClendon v. City of Columbia, 305 F.3d 314,
323 (5th Cir. 2002) (en banc). Plaintiff first must "claim that
the defendants committed a constitutional violation under current
law." Atteberry v. Nocona Gen. Hosp., 430 F.3d 245, 253 (5th Cir.
2005). Plaintiff must then claim that defendants' actions were
objectively unreasonable in light of the law that was clearly
established at the time of the actions complained of. Id. “To be
"clearly established’ for purposes of qualified immunity, [t]he
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Club Retro, L.L.C. v. Hilton, 568 F.3d 181,
194 (5th Cir. 2009) (internal citation omitted).
Because the
Court finds that plaintiff's expulsion accorded with the
12
requirements of due process, it need not reach the second prong
of the qualified immunity analysis.
Due process requires that a student facing discipline "be
given oral or written notice of the charges against him and, if
he denies them, an explanation of the evidence the authorities
have and an opportunity to present his side of the story."
v. Lopez, 419 U.S. 565, 581 (1975).
Goss
All that is required is an
“informal give-and-take” between the student and the decision
makers.
Id. at 584. "There need be no delay between the time
‘notice’ is given and the time of the hearing."
Id. at 582.
Nor
must the administrator "afford the student the opportunity to
secure counsel, to confront and cross-examine witnesses
supporting the charge, or to call his own witnesses to verify his
version of the incident."
Id. at 583.
While such discussion "will add little to the fact-finding
function where the disciplinarian himself has witnessed the
conduct forming the basis for the charge . . . the student will
at least have the opportunity to characterize his conduct and put
it in what he deems the proper context."
Id.; accord Meyer v.
Austin Indep. Sch. Dist., 161 F.3d 271, 274-75 (5th Cir. 1998).
It is clearly established law in this circuit that school
officials are required to permit a student to present his side of
the story.
Swindle v. Livingston Parish Sch. Bd., 655 F.3d 386,
401-02 (5th Cir. 2011).
13
Goss addressed the rights of a public school student facing
a short-term suspension of up to ten days.
The Court observed
that longer suspensions "may require more formal procedures."
Goss, 419 U.S. at 584.
The Court acknowledges, however, that
"the timing and content of the notice and the nature of the
hearing will depend on appropriate accommodation of the competing
interests involved.
419 U.S. at 579.
In this circuit, unless
the unique circumstances require otherwise, courts require
nothing more than an informal Goss hearing before dismissing a
college or graduate student.
See Esfeller v. O'Keefe, 391 F.
App'x 337, 342 (5th Cir. 2010) (suggesting that college student
facing lengthy suspension was entitled to no more process than
Goss requires); Willis v. Texas Tech University Health Sciences
Center, 394 Fed.App'x 86, 87 (5th Cir. 2010) (applying Goss
requirements to college student's expulsion hearing).47
See also
Clarke v. Univ. of N. Texas, 993 F.2d 1544 (5th Cir. 1993)("It
may well be that in the university environment, the nature of
47
Plaintiffs cite a 50-year-old, pre-Goss Fifth Circuit
case in support of their argument that more rigorous procedures
are required to expel a university student. However, that case
made clear that "[t]he nature of the hearing should vary
depending upon the circumstances of the particular case" and
merely prescribed the procedures necessary in that instance.
Dixon v. Alabama State Bd. of Ed., 294 F.2d 150, 158 (5th Cir.
1961).
14
academic requirements and the special sense of community support
less formal procedures than in pre-college education.").
A.
Plaintiff Had an Opportunity to Respond to the Charges.
Plaintiff argues that summary judgment is not warranted
because a factual dispute exists as to whether he was provided an
opportunity to respond to the charges at his meeting with Drs.
Tortu and Williams.
Even accepting as true plaintiff's
assertions that he neither admitted nor explained his conduct to
Dr. Tortu during the hearing, it would be the height of
technicality to suggest that the flexible requirements of Goss
were not satisfied in this case.
Goss emphasized the importance
of permitting a student who denies the charges against him to
present his side of the story.
Watson ex rel. Watson v. Beckel,
242 F.3d 1237, 1242 (10th Cir. 2001) (quoting Goss, 419 U.S. at
581).
Plaintiff has never suggested that he denied the charges
in the meeting with Drs. Tortu and Williams.
On the contrary,
within hours of his expulsion, plaintiff had admitted in writing
to making the threats against OPH property, and he continues to
acknowledge his guilt to this day.
His only complaint to Dean
Fontham, made immediately after his meeting with Drs. Tortu and
Williams–and indeed his only claim before this Court–is that he
was not permitted to "explain the circumstances behind [his]
statement of frustration."
Yet plaintiff's email to Dean Fontham
did just that, and the record reveals that Dean Fontham, who
15
exercised supervisory power over the defendants in her capacity
as Dean of the LSU-SPH and who participated in the decision to
expel plaintiff,48 considered plaintiff's explanation and
discussed it in writing with Drs. Tortu and Williams.
The
evidence indicates that Dean Fontham, having the power to prevent
plaintiff's expulsion, considered his arguments, discussed them
with Drs. Tortu and Williams, made inquiry into the details of
the conversation with plaintiff, and concurred in the decision to
expel the plaintiff before advising him to initiate the appeals
process.
The Court can only conclude from these facts that
plaintiff was given an opportunity to present his side of the
story in a meaningful way in connection with the initial decision
to expel him.
The law requires nothing more.
The Court also notes that there is a line of cases in this
circuit and elsewhere holding that a plaintiff must demonstrate
substantial prejudice in order to mount a successful due process
claim and that a student's admission to the charges against him
is relevant to determine whether such prejudice exists.
In
Keough v. Tate County Bd. of Ed., 748 F.2d 1077 (5th Cir. 1984),
the Fifth Circuit upheld a district court's determination that
even if a student's procedural due process rights had been
48
The expulsion letter plaintiff received from Dr. Tortu
stated "Dean Fontham was aware of these events, and she concurred
with this decision." R. Doc. 55-3. Additionally, plaintiff
himself alleges that Dean Fontham participated in the decision to
expel him. R. Doc. 1 at 6.
16
violated, he was not entitled to relief because he had suffered
no attributable harm.
The Court held:
To establish a denial of procedural due process, a party
must show substantial prejudice. U.S. Pipe & Foundry v.
Webb, 595 F.2d 264, 274 (5th Cir. 1979); Arthur Murray
Studio of Washington, Inc. v. Federal Trade Commission, 458
F.2d 622, 624 (5th Cir. 1972). Whether Keough admitted the
charges therefore is relevant in determining substantial
prejudice or harm. . . . Clearly there was substantial
evidence to support the district court's finding that Keough
admitted the charges and therefore his suspension did not
result from a procedural due process deprivation. See
Fed.R.Civ.P. 52. The district court did not err in finding
that a procedural due process violation, if any, did not
cause injury to Keough.
748 F.2d at 1083.
Subsequent cases in this and other circuits
have cited Keough for the proposition that prejudice is required
to prevail on a procedural due process claim stemming from a
student's academic suspension or dismissal.
See Porter v.
Ascension Parish Sch. Bd., 393 F.3d 608, 624 (5th Cir. 2004)
("Whether a student 'admitted the charges' leveled against him is
'relevant in determining substantial prejudice or harm.'");
Watson, 242 F.3d at 1242 ("Because Mr. Watson candidly admitted
his guilt, Mr. Watson was not prejudiced by a lack of notice. . .
. Mr. Watson, therefore, failed to establish a due process
violation.");
Chalmers v. Lane, CIV.A.3:03-CV-1268-B, 2005 WL
169990, at *8-9 (N.D. Tex. Jan. 25, 2005) ("Because Chalmers
failed to present evidence that the outcome of the disciplinary
proceedings would have been different had Defendants not
committed the due process violations he alleges, Chalmers has not
17
met his burden of demonstrating that he was substantially
prejudiced by any alleged due process violations."); Boster v.
Philpot, 645 F. Supp. 798, 805 (D. Kan. 1986) ("Even if this
court were to find that the procedures employed by defendant
Philpot technically violated the requirements of K.S.A. 72–8902,
the students would still be unable to show that they suffered any
prejudice so as to establish a denial of due process. By
admitting their guilt, the plaintiffs waived their right to a
hearing.").
See also S.K. v. Anoka-Hennepin Indep. Sch. Dist.
No. 11, 399 F. Supp. 2d 963, 968-69 (D. Minn. 2005) (citing
Keough and finding no prejudice and no due process violation,
because students admitted to conduct forming the basis of their
expulsion by pleading guilty to related criminal charges four
months later).
It is clear from the communications among Dean Fontham, Drs.
Tortu and Williams, and Vice Chancellor Moerschbaecher that all
four were aware of defendant's explanation for his behavior and
considered it irrelevant to the question of whether his threats
warranted expulsion.
Indeed, they were of the mind that the
threats per se were grounds for dismissal, irrespective of
plaintiff's state of mind when he made them.
Thus, plaintiff
would have been expelled regardless of whether he was initially
given the opportunity to present his explanation.
It is
therefore abundantly clear that plaintiff has experienced no
18
prejudice.
That plaintiff had an appeal hearing with Vice
Chancellor Moerschbaecher in which he was able to present his
defense, and yet plaintiff was not reinstated as a result of that
hearing, only reinforces this conclusion.
The Court does not decide this case on the basis of Keough
and its progeny, because there is an inherent tension between
that line of cases and the Supreme Court's holding in Carey v.
Piphus, 435 U.S. 247, 266-67 (1978).
In that case, the Court
recognized a plaintiff's freestanding right to adequate process,
regardless of the merits of his substantive defense.
The Court
held that a plaintiff who has suffered no injury as a result of a
due process violation still would be entitled to "nominal damages
not to exceed one dollar."
Id.
Here, the Court bases its
decision to grant summary judgment on the sufficiency of the
process provided to the plaintiff.
It notes, however, that the
lack of demonstrable prejudice in this case compels the
conclusion that even under Carey, if plaintiff could establish a
due process violation, he would be entitled to no more than one
dollar in nominal damages.
A necessary corollary to that result
would be the denial of an award of attorney's fees under 42
U.S.C. § 1988.
See Farrar v. Hobby, 506 U.S. 103 (1992) ("When a
plaintiff recovers only nominal damages because of his failure to
prove an essential element of his claim for monetary relief, the
only reasonable fee is usually no fee at all.") (citations
19
omitted); Hidden Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1053
(5th Cir. 1998) (applying Farrar in affirming the denial of
attorney's fees).
B.
Notice Was Adequate.
Plaintiff also argues that he received inadequate notice of
the charges against him, because the LSU-SPH administrators may
have considered misconduct other than the Facebook posts in
deciding to expel him.
Dr. Tortu's letter memorializing the
expulsion hearing indicated that his dismissal was the result of
"inappropriate and grossly unprofessional behavior, both on
campus and at your practice experience site at the Louisiana
Office of Public Health."
Though the letter reveals that the
administrators were aware of the complaints regarding plaintiff's
behavior when he interned at the OPH, it refers to these
complaints only in describing the impetus for plaintiff's
retaliatory Facebook threats.
Similarly, Dean Fontham's email to
Drs. Tortu and Williams, in which she asked defendants if they
had discussed "the initial complaint at OPH" with plaintiff
during the hearing, does not suggest that the administrators
based their decision to expel the plaintiff on the complaints of
verbal harassment and poor performance.
Dr. Tortu's response
indicates that she chose not to discuss the harassment complaints
"because it was already discussed at the Office of Public Health.
That's why he was removed from OPH and working on Donna's
20
project."
In other words, Dr. Tortu felt it unnecessary to
rehash earlier complaints against the plaintiff when those
complaints had been addressed already.
The purpose of the
hearing was to address the subject of the OPH's complaint against
plaintiff and the basis for the expulsion: the threat to destroy
government property.
In any event, it would not be inappropriate for the
defendants to justify plaintiff's dismissal on additional
grounds, because plaintiff was notified of the conduct that
resulted in the decision to expel him.
See Watson, 242 F.3d at
1242 ("[B]ecause Mr. Watson received proper notice regarding the
charge of assault and was expelled for the assault, Mr. Watson
would not be prejudiced by the board justifying expulsion on
additional grounds.") (citing Smith v. Severn, 129 F.3d 419, 428
(7th Cir.1997) (holding that when a student receives proper
notice of a charge and is suspended on the basis of that charge,
justifying the suspension by finding additional violations does
not constitute a due process violation)).
Viewing the evidence
in the light most favorable to the plaintiff, he has failed to
demonstrate a dispute of material fact as to whether he received
adequate notice of the charges.
21
IV.
CONCLUSION
For the foregoing reasons, the Court GRANTS the defendants'
motion for summary judgment.
New Orleans, Louisiana, this 10th day of October, 2013.
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_________________________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE
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