Pham v. University of Louisiana at Monroe et al

Filing 30

RULING re 2 MOTION for Preliminary Injunction filed by Dung Quoc Pham, and 11 MOTION to Dismiss University of Louisiana at Monroe, Ethics Board, Breach of Contract and Defamation Claims and Prospective and Retroactive Injunctive Relief filed by University of Louisiana at Monroe, Sherrye Carradine, Khalid El Sayed, Benny Blaylock, Michael Cockerham, Eric A Pani, Tibb Jacobs, Keith Jackson. Signed by Judge Robert G James on 7/13/16. (crt,DickersonSld, D)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION

DUNG QUOC PHAM

CIVIL ACTION NO. 16-00467

VERSUS

JUDGE ROBERT G. JAMES

UNIVERSITY OF LOUISIANA AT MONROE,
ET AL.

MAG. JUDGE KAREN L HAYES

RULING
Plaintiff Dung Quoc Pham (“Pham”) brings this suit against Defendants the University of
Louisiana System Board of Supervisors (“ULM”); Dean Benny Blaylock, individually and in his
official capacity as Dean of ULM’s College of Pharmacy (“Dean Blaylock”); Dr. Keith Jackson,
individually and in his official capacity as Faculty Chairperson of the Board of Ethics of ULM’s
College of Pharmacy (“Dr. Jackson”); Dr. Tibb Jacobs, individually and in her official capacity as
Faculty Chairperson of the Board of Ethics of ULM’s College of Pharmacy (“Dr. Jacobs”); Dr.
Michael Cockerham, individually and in his official capacity as Associate Dean of Academic Affairs
of ULM’s College of Pharmacy (“Dr. Cockerham”); Dr. Khalid El Sayed, individually and in his
official capacity as Professor of ULM’s College of Pharmacy (“Dr. El Sayed”); Eric A. Pani,
individually and in his official capacity as Vice President of Academic Affairs for ULM (“Pani”);
and Sherrye Carradine, individually and in her official capacity as in-House Counsel for ULM
(“Carradine”) (referred to collectively as “Defendants”) for purported violations of 42 U.S.C. § 1983
(Ҥ 1983").
Pending before the Court are Pham’s Motion for a Preliminary Injunction [Doc. No. 2] and

Defendants’ Motion to Dismiss all claims against Defendants for monetary damages in their
individual capacities on qualified immunity grounds. [Doc. No. 11]. For the following reasons,
Pham’s Motion for a Preliminary Injunction is DENIED. Defendants’ Motion to Dismiss is
GRANTED to the extent they seek qualified immunity with respect to all claims against them in their
individual capacities for monetary damages. Those claims are DISMISSED WITH PREJUDICE.
I.

FINDINGS OF FACT1
At the time of his expulsion, Pham was a third-year pharmacy student at the ULM’s College

of Pharmacy. Pham was allegedly caught cheating on multiple occasions which caused the school
to take disciplinary actions. He asserts that the College of Pharmacy failed to comply with due
process before punishing him on two occasions, the second of which resulted in his expulsion.
A.

Initial Charge (“Pham I”)

The initial charge of cheating related to the administration of an Infectious Disease
examination. Professors Adam Pate (“Pate”) and El Sayed claimed to have witnessed Pham cheating
with another student. Dr. Cockerham sent written notice to Pham that the professors alleged
academic dishonesty in violation of Rules 3.01, 02, and 03 of the University of Louisiana at Monroe
College of Pharmacy Code of Ethical and Professional Conduct (“the Code”).2 Pham requested a

1

Federal Rule of Civil Procedure 52(a)(1) provides that “[i]n an action tried on the facts
without a jury or with an advisory jury, the court must find the facts specially and state its
conclusions of law separately. Fifth Circuit precedent commands that this rule be applied in the
context of preliminary injunctions. Software Dev. Tech. v. TriZetto Corp., 590 Fed. App’x. 342,
344 (5th Cir. 2014) (citing Petrello v. Nath, 350 Fed. App’x 887, 890-92 (5th Cir. 2009); Sierra
Club, Lone Star Chapter v. F.D.I..C., 992 F.2d 545, 551-52 (5th Cir. 1993)). Sections I and II
serve as formal findings of fact and conclusions of law for purposes of Pham’s request for a
preliminary injunction.
2

The Court has taken judicial notice of the Code in accordance with Federal Rule of
Evidence 201.
2

hearing in accordance with the Code.
On April 2, 2015, the Ethics Board conducted the initial hearing against Pham. Pham was
not represented by counsel and pled not guilty. According to the hearing minutes, the Ethics Board
found Pham guilty on the basis of testimony from Pate and Dr. El Sayed, which included testimony
concerning ExamSoft records from the examination. The actual ExamSoft records were not
introduced at the hearing, or, it appears, on appeal.3 The Ethics Board recommended that Pham
receive a zero grade for the examination and probation for the duration of his tenure at ULM’s
pharmacy school.
On April 7, 2015, Jackson sent a letter to Pham notifying him that the Ethics Board had found
him guilty by a preponderance of the evidence for “giving unauthorized assistance to a fellow student
on an exam and receiving unauthorized assistance.” According to Defendants, this violation alone
would have been grounds for expulsion. After this letter was sent, Pham sought the advice of Dr. El
Sayed who recommended that Pham apologize for his alleged misconduct and seek mercy.
Pham followed Dr. El Sayed’s advice and wrote a letter to Dean Blaylock apologizing for
his misconduct but not explicitly admitting cheating. On April 15, 2015, Dean Blaylock gave Pham
written notice that his Office would uphold the Ethics Board’s findings and recommendation.
According to Pham, Dean Blaylock’s review was meaningless because he essentially rubber-stamped
the findings and recommendation of the Ethics Board.
Pham appealed this adverse decision to Pani, the final arbiter in the process. According to
Pham, at this time, he realized that he had been “duped.” He wrote a letter to Pani explaining that
3

ExamSoft is a program which allows students to take examinations on their computers
without being able to access the internet or other computer programs. See EXAMSOFT,
Http://www.learn.examsoft.com/exam-takers-overview (last visited July 7, 2016).
3

he had written the apology letter on the advice of Dr. El Sayed–his original accuser. Pani denied
Pham’s appeal, stating that “I find no grounds for your appeal since you admitted the misconduct in
your appeal to Dean Blaylock.”
B.

Second Charge (“Pham II”)

Around November 12, 2015, Dr. Courtney Robinson (“Dr. Robinson”) informed Dr.
Cockerham that she caught Pham using unauthorized materials in the completion of a graded
examination. On November 12, 2015, Dr. Cockerham sent written notice to Pham that Dr. Robinson
had accused him of academic dishonesty in violation of Rule 3.01.01.4
On November 16, 2015, Pham’s counsel provided notice to Dr. Jacobs and Dr. Cockerham
that Pham denied the charges against him and requested a formal hearing. Pham’s counsel requested
the opportunity to cross examine witnesses. This request was denied, but Dr. Cockerham indicated
that Pham would be allowed to cross examine witnesses in accordance with the Code.
The formal hearing was scheduled for December 14, 2015. Before the hearing, Pham
requested that the Ethics Board consider his answer sheet, which he felt would demonstrate his
innocence. At the hearing, Pham and his counsel were prevented from cross examining witnesses.
Moreover, the Ethics Board did not consider the answer sheet in Pham’s presence. Instead, the Ethics
Board considered the evidence during deliberations and found that it showed Pham’s guilt. The
Ethics Board found Pham guilty of using unauthorized materials and recommended expulsion.

4

Rule 3.01.01 provides that “ the receipt, possession or use of any material or assistance
not authorized by the instructor in the preparation of papers, reports, examinations, or any class
assignment to be submitted for credit as part of a course[,]” shall be a violation of the Code. See
UNIVERSITY OF LOUISIANA AT MONROE COLLEGE OF PHARMACY CODE OF ETHICAL AND
PROFESSIONAL CONDUCT, www.ulm.edu/pharmacy/documents/ospa/codeofconductv82011.pdf.
(Last visited July 7, 2016).
4

On December 16, 2015, Dean Blaylock wrote Pham and informed him that he agreed with
the Ethics Board’s findings and recommendation of expulsion. Pham did not receive any findings
of fact or conclusions from the Ethics Board despite Rule 11.11 which requires their divulgence.
On January 4, 2016, Pham’s counsel delivered a letter to Dean Blaylock which documented
multiple instances of the Ethics Board and Dean Blaylock failing to comply with the Code. That
same day, Dean Blaylock emailed Pham and informed him that he would grant a second, abbreviated
hearing in which Pham could cross examine witnesses. The findings of fact and conclusions from
the initial hearing were given to Pham on January 12, 2016.
On January 21, 2016, the supplemental hearing was held during which Pham was allowed
to cross examine witnesses. The Ethics Board maintained its initial findings and recommendation.
On January 23, 2016, Dean Blaylock sent a letter to Pham informing him that he agreed with the
Ethics Board’s findings and recommendation. No findings of fact or conclusions were ever provided
to Pham from the supplemental hearing.
On February 1, 2016, Pham appealed the decision to Pani. Pham presented an appeal which
noted multiple deviations from the Code including Dean Blaylock’s decision to adopt the Ethics
Board’s findings before Pham had even appealed the decision.
On March 24, 2016, Pani sent Pham a letter which specifically addressed the complaint that
Dean Blaylock failed to hear his appeal. Pani granted Pham two options. The first option entailed
Pani suspending his review of the appeal until Dean Blaylock had a chance to properly review the
appeal. If Dean Blaylock upheld the Ethics Board’s findings and recommendation, Pani would
resume his review of the appeal. The second option involved foregoing the appeal to Dean Blaylock
so that the case effectively went straight from the Ethics Board to Pani–the final arbiter. It is
5

somewhat unclear, but it appears that Pham chose option two, asking Pani to remedy the “grave
injustice” and denial of constitutional rights stemming from the proceedings.
On April 1, 2016, Pani adopted the Board’s decision to expel Pham from the pharmacy
school. The letter stated that Pham “simultaneously possessed unauthorized materials and the graded
[exercise’s] answer sheet, violating Rule 3.01.01 of the ULM School of Pharmacy Code of Ethical
and Professional Conduct.”
On April 6, 2016, Pham filed a Complaint in this Court seeking a temporary restraining
order, preliminary injunction, and monetary damages. [Doc. Nos. 1, 2]. Specifically, he asserts that
Defendants’ actions deprived him of a protected liberty or property interest (his continuing
education) without due process of law. He also asserted that the Code was a binding contract
between university and student which ULM breached by failing to conduct the disciplinary
proceedings in strict compliance with the Code.
The Court denied Pham’s request for a temporary restraining order on April 8, 2016. [Doc.
No. 5]. On May 11, 2016, Defendants filed a motion to dismiss certain parties and claims from this
lawsuit. [Doc. No. 11]. On June 6, 2016, the Court granted the motion in part, but deferred ruling
on the issue of qualified immunity pending further briefing.5 [Doc. Nos. 20, 21].
On June 7 and 8, 2016, the Court held a hearing on Pham’s motion for a preliminary
injunction. The parties submitted post-hearing briefs on the preliminary injunction issue. The parties
also submitted further briefing on the qualified immunity issue. The Court is now prepared to rule
on both issues.
5

Specifically, the Court dismissed Pham’s state law breach of contract claim. The Court
also dismissed Pham’s claims against the University of Louisiana at Monroe and the Ethics
Board because those entities lack the capacity to be sued in federal court.
6

II.

CONCLUSIONS OF LAW

A.

Preliminary Injunction Standard

There are four traditional criteria a party moving for a preliminary injunction must satisfy:
(1) irreparable injury; (2) substantial likelihood of success on the merits; (3) a favorable balance of
hardships; and (4) no adverse effect on the public interest. Black Fire Fighters Ass’n of Dall. v. City
of Dallas, 905 F.2d 63, 65 (5th Cir. 1990). A preliminary injunction is an extraordinary remedy; it
should not be granted unless the movant clearly satisfies all four requirements. Planned Parenthood
Ass’n of Hidalgo Cty. Tex., Inc. v. Suehs, 692 F.3d 343, 348 (5th Cir. 2012).
Additionally, where, as here, the movant seeks to alter the status quo as opposed to preserve
it, a preliminary injunction “is particularly disfavored, and should not be issued unless the facts and
law clearly favor the moving party.” Roark v. Individuals of Fed. Bur. of Prisons, Former and
Current, 558 Fed. App’x 471 (5th Cir. 2014) (quoting Martinez v. Matthews 544 F.2d 1233, 1243
(5th Cir. 1976)); see also Schrier v. Univ. of Colo., 427 F.3d 1253, 1258-59 (10th Cir. 2005); Tom
Doherty Associates Inc. v. Saban Entm’t Inc., 60 F.3d 27, 34 (2d Cir. 1995).
Ultimately, after applying these standards, the Court finds that Pham has not met his burden
of convincing the Court that a preliminary injunction–an “extraordinary remedy”–is appropriate in
this case.
B.

Substantial Likelihood of Success on the Merits in this Case
1.

Procedural Due Process in the University Context

Initially, the Court finds that Pham has not shown a substantial likelihood of success on the
merits. The United States Supreme Court has never addressed whether a university student has a
protected liberty or property interest in post-high school education. There is disagreement among
7

the circuits, but the Fifth Circuit has held, in seemingly applicable precedent, that a university
student has some type of protected interest which must be appropriately safeguarded prior to
expulsion. See Dixon v. Ala. State Bd. of Ed., 294 F.2d 150, 157 (5th Cir. 1961).
Thus, in accordance with Dixon, ULM could not deprive Pham of his university education
without adequate due process.
The first question is whether the dismissal is academic or disciplinary in nature. There are
less stringent due process requirements for academic dismissals. See Shah v. Univ. of Tex.
Southwestern Med. Sch., 54 F.Supp.3d 681, 692 (N.D. Tex. 2014) (citing Bd. of Curators of Univ.
of Missouri v. Horowitz, 435 U.S. 78, 98 (1978)). Disciplinary dismissals, on the other hand, require
more safeguards. In the context of a ten-day suspension from high school, due process requires “that
the student 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.”
Goss v. Lopez, 419 U.S. 565, 581 (1975). The “hearing” before the school need not be formal, but
may be “an informal give and take.” Beauchene v. Miss. College, 986 F.Supp.2d 755, 769 (S.D.
Miss. 2013) (citations omitted).
In the context of a disciplinary expulsion, Dixon remains instructive:
[T]he notice should, we think, comply with the following standards. The
notice should contain a statement of the specific charges and grounds which,
if proven, would justify expulsion under the regulations of the Board of
Education. The nature of the hearing should vary depending on the
circumstances of the particular case...[b]y its nature, charge of misconduct,
as opposed to a failure to meet the scholastic standards of the college,
depends upon a collection of the facts concerning the charged misconduct,
easily colored by the point of view of the witnesses. In such circumstances,
a hearing which gives the Board or administrative authorities of the college
an opportunity to hear both sides in considerable detail is best suited to
protect the rights of all involved. This is not to imply that a full-dress judicial
8

hearing, with the right to cross examine witnesses, is required...[i]n the
instant case, the student should be given the names of the witnesses against
him and an oral or written report on the facts to which each witness testifies.
In addition to those safeguards, a student is entitled to a neutral decision-maker free from
bias. “There is no question that a biased decision-maker renders a disciplinary process
unconstitutional.” Hess v. The Bd. of Tr. of Southern Ill. Univ., 14-00727, 2015 WL 8301461 at *10
(S.D. Ill. Dec. 9, 2015) (citing Withrow v. Larkin, 421 U.S. 35, 46-47 (1975)); Batagiannis v. W.
Lafayette Cty. Sch. Corp., 454 F.3d 738, 742 (7th Cir. 2006). But, “[i]n a school disciplinary context,
the level of impartiality required for the decision-maker does not reach the absolute neutrality
required in the criminal justice system.” Riggan v. Midland Indep. Sch. Dist., 86 F.Supp.2d 647, 656
(W.D. Tex. 2000). Moreover, there is a presumption of honesty and integrity in those serving as
adjudicators. See Withrow, 421 U.S. at 47. In order to make out a procedural due process claim based
on bias, actual bias must be proved.
Additionally, a University’s departure from its own rules and regulations does not, by itself,
violate procedural due process unless the rule or regulation codifies the pertinent constitutional
standard. See, e.g.; Brown v. Univ. of Kansas, 16 F.Supp.3d 1275, 1290 (D. Kan. 2014) aff’d 599
Fed. App’x. 833 (10th Cir. 2015); Trotter v. Regents of Univ. of New Mexico, 219 F.3d 1179, 1185
(10th Cir. 2000); Schuler v. Univ. of Minn., 788 F.2d 510, 515 (8th Cir. 1986); Jones v. Bd. of Gov.
of North Carolina, 704 F.2d 713, 717 (4th Cir. 1983); Shah, 54 F.Supp.3d at 681, n. 15; Cobb v.
Rector and Visitors of Univ. of Virginia, 69 F.Supp.2d 815, 828 (W.D. Va. 1999); Edwards v. Bd.
of Regents of Northwest Missouri State Univ., 397 F.Supp.822, 829-30 (W.D. Mo. 1975). A plaintiff
has no due process right to state-implemented procedures. The relevant inquiry at all times is
whether or not a plaintiff has been afforded constitutionally adequate notice and a constitutionally
9

adequate hearing. However, the continuous violation of state-implemented rules could conceivably
violate procedural and/or substantive due process if such conduct shocks the conscience or results
in fundamentally unfair proceedings.
Finally, although case law has given general guidelines as to what specific procedures should
be employed in the university context, it is important to remember that “the requisite elements of
procedural due process are not wooden absolutes applicable to each case regardless of
circumstances.” U.S. v. Richardson Indep. Sch. Dist., 483 F.Supp. 80, 85 (N.D. Tex. 1979).
2.

Substantive Due Process in the University Context

In addition to procedural due process, the Fourteenth Amendment also protects substantive
due process rights. The substantive component of the due process bars certain arbitrary government
actions, “even if their implementation is fair.” Dismukes v. Hackathorn, 802 F.Supp. 1442, 1447
(N.D. Miss. 1992) (citations omitted). In determining whether the government’s action has been
arbitrary in the constitutional sense, the Court asks whether the government action “shocks the
conscience.” See Kinzie v. Dallas Cty. Hosp. Dist., 239 F.Supp.2d 618, 628 (N.D. Tex. 2003)
(citations omitted). “In the case of the specific acts of Defendants ‘only the most egregious official
conduct’ is arbitrary in the constitutional sense.” Hess, 2015 WL 8301461 at *11 (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 845-46 (1998)).
3.

Application to Pham I
a.

Procedural Due Process

First, the parties debate whether the proceedings were academic or disciplinary in nature.
Under the standards articulated above, the Court has no trouble concluding that the punishment doled
out to Pham was disciplinary. Pham received a failing grade and was placed on probation for
10

misconduct, not an inability to digest, understand, or implement academic material.
Although the Court could find no case directly on point (most cases deal with expulsions or
suspensions), some type of notice and an opportunity to be heard were necessary before failing Pham
and placing him on probation for the duration of his tenure with the university. Pham unquestionably
received notice sufficient to allow him to defend himself against the charges. He was also provided
the opportunity to be heard. Broadly, Pham’s issues with the first proceeding stem from ULM’s
alleged deviation from its own rules and Dr. El Sayed’s allegedly improper influence on the appeals
process.
Pham asserts that Defendants engaged in the following conduct which deprived him of a
liberty or property interest without due process of law:
•

Violating Rule 11.11 by not providing Pham with written findings of fact or
conclusions.

•

Not introducing the actual ExamSoft records from the examination, but, rather,
hearing testimony about those records from the professor who administered the
exam.

•

Not giving Pham notice of the ExamSoft records prior to the hearing, which violated
Rules 7.01.02 and 10.02.

•

Advising Pham to apologize for his misconduct during his appeals process which
terminated his chances on appeal.

First, there is no constitutional right to receive written findings of fact and conclusions in the
student discipline context. See Flaim v. Med. Coll. of Ohio, 418 F.3d 629, 641-42 (6th Cir. 2005)
(citing Jaska v. Regents of the Univ. of Mich., 597 F.Supp. 1245 (E.D. Mich. 1984), aff’d, 787 F.2d
590 (6th Cir. 1986). While Defendants failed to comply with the Code, their failure to provide these
findings was not unconstitutional.

11

Second, Pham complains that he had no prior notice that ExamSoft records would be used
as evidence against him at the hearing. He also complains that Defendants never introduced the
actual records; rather, Pate testified as to the substance of the records. However, the Court has found
no case stating that a student in a disciplinary proceeding is entitled to have actual records introduced
into evidence (as opposed to testimony describing those records). Moreover, although universities
are encouraged to notify the student of the evidence to be used against them prior to the hearing, this
is not constitutionally required, at least when the student attends the hearing and is able to question
witnesses.6 See, e.g., Nash v. Auburn Univ., 812 F.2d 655, 663 (11th Cir. 1987); Keough v. Tate Cty.
Bd. of Educ., 748 F.2d 1077, 1082 (5th Cir. 1984); see also Gomes v. Univ. of Maine Sys., 365
F.Supp.2d 6, 25 (D. Maine 2005) (“[D]ue process does not require students be given a list of exhibits
before the hearing if the students attend the hearing.”).
Third, Dr. El Sayed’s advice to Pham–while ill-advised–was hardly unconstitutional. There
was no evidence adduced at the hearing that Dr. El Sayed coerced Pham to confess to cheating.
Pham’s theory seems to be that the interaction was improper simply because Dr. El Sayed was one
of the original accusers, thus, he must have been biased. However, bias in the constitutional sense
will not be lightly inferred. For example, courts have held that bias will not be inferred in the school
discipline context where the original accuser also decides guilt and what punishment is appropriate.
See Heyne, 655 F.3d at 567. (“The impartiality demanded by due process does not preclude many
common school disciplinary practices. For example, the Fifth and Seventh Circuits have concluded
that due process is not necessarily violated where the school official who initiates, investigates, or

6

There is no indication that Pham was prevented from questioning witnesses at the first

hearing.
12

prosecutes charges against a student plays a role in the decision to suspend the student.”) (citing
Lamb v. Panhandle Cty. Unit. Dist. No. 2, 826 F.2d 526, 529-30 (7th Cir. 1987); Brewer by Dreyfus
v. Austin Indep. Sch. Dist., 779 F.2d 260, 264 (5th Cir. 1985)). Here, Pham had to introduce some
evidence showing actual bias to raise a constitutional concern. He failed to accomplish that.
Last, to the extent that Pham argues that all of these incidents taken together demonstrate a
fundamentally unfair proceeding, the Court again disagrees. After finding out about Dr. El Sayed’s
contact with Pham, ULM allowed Pham to retake the examination. While Pham remained on
probation, the Court is convinced that ULM’s actions in allowing Pham to retake the exam erase any
concern that the proceedings were fundamentally unfair in the procedural due process sense.
b.

Substantive Due Process

The substantive due process analysis asks whether Defendants’ conduct was so arbitrary as
to shock the conscience. That standard is not met here. While Defendants should have followed their
own Code, and while Dr. El Sayed should not have offered Pham advice, these actions do not shock
the conscience in the constitutional sense.7 This is especially true because Pham was allowed to
retake the exam.
4.

Application to Pham II

After Pham I, Pham was again allegedly caught cheating, this time by Dr. Robinson. Pham
alleges that the second proceeding was also constitutionally insufficient. Pham cites the following
events and departures from the student code in support of his argument:

7

Dixon provides an example of conduct which is so arbitrary that it violates a student’s
substantive due process rights. There, African-American students were expelled simply because
they sought to purchase lunch at a publicly owned grill in the basement of the Montgomery,
Alabama, county courthouse. Dixon, 294 F.2d at 152, n. 3.
13

•

Robinson’s initial charge, as well as the notice given to Pham, indicates that he was
charged with the use of unauthorized materials in violation of Rule 3.01.01.
However, Pani’s final denial of appeal indicates that ULM expelled Pham for
possessing unauthorized materials. Thus, Pham claims that he lacked notice that he
may be expelled for possessing unauthorized materials.

•

Pham asked the Ethics Board to consider his answer sheet in determining his guilt.
However, the Ethics Board did not discuss it until its deliberations outside Pham’s
presence.

•

Despite assurances from Dean Blaylock, Pham was not allowed to cross examine
witnesses at the initial hearing.

•

Pham was not provided with a copy of the findings of fact and conclusions from the
initial hearing until his counsel complained, and he never received the findings of
fact and conclusions from the supplemental hearing.

•

Dean Blaylock did not properly consider Pham’s appeal. He simply rubber-stamped
the findings and recommendations of the Ethics Board.

•

According to Pham, all of the above occurrences violated various portions of the
University Code.

Pham has not clearly shown a substantial likelihood of success on this claim. With respect
to the notice argument, the Court finds that Pham was sufficiently apprised of the charges against
him. To be sufficient in the constitutional sense, the notice must allow the accused to mount a proper
defense. See Flaim, 418 F.3d at 638 (citing Jaska, 597 F.Supp. at 1250, aff’d 787 F.2d 590). The
Court has found no case directly on point in the student discipline case law; however, analogies can
be drawn from other arenas. For example, in Northern v. Hanks, 326 F.3d 909, 910 (7th Cir. 2003),
a prisoner was charged with smuggling tobacco into the facility with the help of a staff member.
Prison officials charged the prisoner with conspiracy and bribery with a potential punishment of
losing credit for good behavior. The Conduct Adjustment Board found him guilty. On appeal, the
reviewing authority modified the charge to attempted trafficking. The prisoner argued that his due

14

process right to notice had been violated because the official charge was different from the charge
in the original notice. The Seventh Circuit disagreed and found that, because the prisoner had notice
of the facts underlying the charge, he was sufficiently notified that he could be subject to a
trafficking charge. See also Najjar v. Yusuff, 81 Fed. App’x. 815, 816 (5th Cir. 2003) (finding no
due process violation where notice to prisoner accused him of lying to staff yet the prisoner was
convicted of attempted lying). These cases bolster the Court’s conclusion that Pham received
adequate notice. The panoply of rights given to prisoners in such cases is at least as extensive as the
rights given to students in disciplinary matters. (Compare Wolff v. McDonnell, 418 U.S. 539, 566-67
(1974) with Dixon, 294 F.2d at 157).
In this case, Pham was clearly aware of the conduct which ULM believed constituted grounds
for expulsion. Indeed, the notice sent to Pham indicated that he violated 3.01.01 which forbids the
use and/or possession of unauthorized materials. Pham makes much of the fact that Pani’s final letter
referenced the possession of unauthorized materials even though Robinson’s charge referred to the
use of unauthorized materials. However, as a matter of logic, use includes possession. Moreover, Dr.
Robinson’s version of the facts was sent to Pham, so that he could prepare a counter affidavit. From
the facts alleged by Dr. Robinson, Pham was put on notice that a potential charge of using and/or
possessing unauthorized materials was possible.
Turning to the Ethics Board’s consideration of Pham’s answer sheet in its deliberations, the
Court finds no constitutional error. Pham had knowledge of this evidence as he was the one who
initially urged the Ethics Board to consider it. What is more, Defendants provided a second,
abbreviated hearing at which Pham could have cross examined witnesses about the answer sheet and
its relation to his case if he wished.
15

With respect to Dean Blaylock’s consideration of Pham’s appeal, the Court finds no error of
a constitutional magnitude. Although it appears that Dean Blaylock considered the appeal without
review of Pham’s arguments, the error was harmless. Pani was the last stop in the appeals process.
There is no dispute that Pani actually considered Pham’s appeal.
Pham next appears to argue that, although the individual violations of the Code might not
amount to violations of due process, the culmination of all the missteps in the second proceeding
resulted in a process that was fundamentally unfair. The Court disagrees. Again, although ULM’s
process was not a model of consistency, Pham received adequate notice and a hearing. He also
received a supplemental hearing so that Pham could cross examine witnesses–a formality not
required by the constitution. Under these facts, Pham has failed to show that the second proceeding
was so fundamentally unfair as to render it a violation of Pham’s procedural due process rights.
b.

Substantive Due Process

Pham does not specifically argue that Defendants’ actions violated his substantive due
process rights, but, in an abundance of caution, the Court also analyzes his claims under a
substantive due process theory and finds no conduct so arbitrary that it “shock[s] the conscience.”
Expelling a student after a hearing, a supplemental hearing, and an appeals process is not the type
of conduct which shocks the conscience as a matter of law.
C.

Other Preliminary Injunction Factors

Pham devotes nearly all his briefing to the substantial likelihood of success on the merits
issue. There are four factors courts consider in the preliminary injunction context. And because Pham
is seeking a mandatory injunction to alter the status quo, he must convincingly meet his burden on
each factor.
16

In addition to the substantial likelihood of success on the merits factor, the Court must
consider whether Pham’s injury–expulsion from ULM–amounts to a threat of irreparable harm. “A
plaintiff seeking a preliminary, as opposed to a permanent injunction must show that the irreparable
injury will occur ‘during the pendency of the litigation’ unless the preliminary injunction issues.”
Rimkus Consulting Group, Inc. v. Cammarata, 255 F.R.D. 417, 433 (S.D. Tex. 2008) (quoting Justin
Inds., Inc. v. Choctaw Secs., L.P., 920 F.2d 262, 268 n. 7 (5th Cir. 1990). In order for a harm to be
considered irreparable for purposes of issuing a preliminary injunction, monetary damages must be
inadequate to redress it. In this case, ULM had already expelled Pham at the time he brought this
suit. Therefore, there is no threat of irreparable injury or reason to preserve the status quo because
the status quo is not what is desired. This weighs against granting a preliminary injunction. See
Mountain Med. Equip., Inc. v. Healthdyne, Inc., 582 F.Supp. 846, 848 (D. Colo. 1984) (“Harm that
has already occurred cannot be remedied by an injunction.”).
Second, Pham has introduced no argument or evidence concerning the remaining two
preliminary injunction factors: (1) that the threatened injury outweighs any potential harm to the nonmovant; and (2) that the injunction will not undermine the public interest. See Valley v. Rapides
Parish Sch. Bd., 18 F.3d 1047, 1051 (5th Cir. 1997). Pham’s failure to carry the burden of persuasion
on all four elements precludes the requested relief. See Bluefield Water Ass’n, Inc. v. City of
Starkville, Miss., 577 F.3d 250, 253 (5th Cir. 2009) (“We have cautioned repeatedly that a
preliminary injunction is an extraordinary remedy which should not be granted unless the party
seeking it has ‘clearly carried the burden of persuasion’ on all four requirements.”) (quoting Lake
Charles Diesel Inc., v. Gen. Motors Corp., 328 F.3d 192, 195-96 (5th Cir. 2003)).
In sum, because Pham has failed to convincingly demonstrate the propriety of injunctive
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relief, the request for a preliminary injunction is DENIED.
D.

Qualified Immunity8

Pham has sued multiple school officials in both their individual and official capacities. All
Defendants seek a finding of qualified immunity with respect to the suits against them in their
individual capacities.
Qualified immunity is a doctrine that strives to strike a balance between the rule of law and
the exercise of personal liberties in a free society. In that sense, it affords officers with ample room
to make “reasonable but mistaken judgments about open legal questions.” Rodriguez v. Bexar Cty.
Hosp. Dist., 14-861, 2015 WL 77600209 at *21 (W.D. Tex. Nov. 30, 2015) (citations omitted).
Importantly, once asserted by the defendant, the burden shifts to the plaintiff to show that the defense
is inapplicable. See McCreary v. Richardson, 738 F.3d 651, 655 (5th Cir. 2013).
Courts employ a two step procedure to gauge the applicability of qualified immunity. These
steps can be reviewed in any order, but the underlying inquiries are whether the plaintiff has alleged
facts sufficient to state a constitutional violation and whether, at the time of the incident, the contours
of the right were clearly established so that every reasonable officer would understand what he was
doing violates that right. Cutler v. Stephen F. Austin State Univ., 767 F.3d 462, 471 (5th Cir. 2014).
On the other hand, the clearly established prong does not necessarily require a case “directly on
point.” See Morgan v. Swanson, 659 F.3d 359, 372 (5th Cir. 2011) (quoting) Ashcroft v. al-Kidd, 563
U.S. 731, 741 (2011). Still, precedent must have placed the pertinent constitutional issue beyond
8

Because Defendants raised the qualified immunity issue in a motion to dismiss, the
Court has not considered any evidence adduced during the preliminary injunction hearing in
ruling on the motion. See Underwood v. Hunter, 604 F.2d 367, 369 (5th Cir. 1979) (noting that
court converts 12(b) motion into motion for summary judgment where considering evidence
outside the pleadings).
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debate. Ashcroft, 563 U.S. at 741. Indeed, the qualified immunity defense will protect all but the
“plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 340
(1986).
1.

Dr. Jackson

Pham has named Dr. Jackson as a Defendant in this matter. It appears that Pham only seeks
damages against Dr. Jackson for his role as the Chair of the Ethics Board Committee in Pham I.
However, there is no indication that Dr. Jackson had a vote in the initial proceedings. Assuming
arguendo, there was some constitutional violation resulting from Pham I, Jackson cannot assume
monetary responsibility unless he was personally involved in the constitutional deprivation or took
a wrongful action which was casually connected to the constitutional deprivation. See A.W. v.
Humble Indep. Sch. Dist., 25 F.Supp.3d 973, 1003 (S.D. Tex. 2014) (noting that, in order to state
a claim against an official in his individual capacity, the plaintiff must allege personal involvement
in the constitutional deprivation or a wrongful action which is causally connected to such
deprivation). The facts, even when viewed in a light most favorable to Pham, do not bear that out.
Dr. Jackson is entitled to qualified immunity.
2.

Dr. El Sayed

Dr. El Sayed is also entitled to qualified immunity. His only involvement in this suit stems
from his alleged attempt to convince Pham to apologize for his conduct. Pham appears to argue that
Dr. El Sayed’s bias must be presumed because he was Pham’s original accuser, and thus, any contact
he had with Pham served to taint the proceedings. This is not so: courts have refused to find bias in
cases in which a school officer acts as both the accuser and the judge of guilt. See Heyne, 655 F.3d
at 567. Here, Dr. El Sayed’s role as one of the original accusers does not serve to taint his subsequent
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involvement in the proceedings. Pham fails to allege facts sufficient to make out a constitutional
violation on the part of Dr. El Sayed. Dr El Sayed is entitled to qualified immunity.
3.

Dr. Jacobs

Dr. Jacobs served as the chair of the Ethics Board for Pham I. She had no vote in the guilt
or punishment recommendation. She appears to be named because the Ethics Board failed to allow
Pham the opportunity to cross examine witnesses, despite previous assurances from Dr. Cockerham.
Pham also takes issue with the fact that evidence was considered outside his presence.
First, Pham has no constitutional right to cross examine witnesses in a school expulsion
proceeding. See Dixon, 294 F.2d at 159. Nor does Pham point the Court to any authority indicating
that a consideration of evidence outside the presence of the accused amounts to a constitutional
violation in this context.
Second, assuming arguendo that either of these missteps amounted to a constitutional
violation initially, the subsequent hearing alleviated any concerns. Dr. Jacobs is entitled to qualified
immunity because Pham has not alleged facts showing that she committed or engaged in a
constitutional violation.
4.

Dr. Cockerham

Dr. Cockerham’s involvement in this case appeared to be limited to investigating reports of
cheating and providing information on the hearing to all parties. He did not participate in or vote at
either hearing. Pham’s issue with Dr. Cockerham seems to stem from Dr. Cockerham advising Pham
that he would be allowed to cross examine witnesses at the hearing. However, assuming, arguendo,
that this violated Pham’s right to due process, the error was corrected by the supplemental hearing.
Accordingly, Pham’s Complaint fails to make out a constitutional violation on the part of Dr.
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Cockerham and he is entitled to qualified immunity.
5.

Dean Blaylock

Dean Blaylock heard appeals in both Pham I and Pham II. The Complaint indicates that he
essentially decided the appeals without considering any of Pham’s arguments or evidence. While
normally this would be problematic, Dean Blaylock was not the final arbiter. Thus, assuming
arguendo that Dean Blaylock approached the appeal with the kind of closed mind that offends due
process, Pani’s review served to break the causal connection between the wrong and the injury. Nor
does the Court find that Blaylock’s actions, taking as true the allegations in Pham’s complaint, were
so arbitrary as to shock the conscience in the constitutional sense. Dean Blaylock is entitled to
qualified immunity.
6.

Pani

Pani was the final arbiter with respect to both Pham I and Pham II. The central complaint
against Pani seems to be that he found Pham guilty of possessing unauthorized materials even though
the charge referred to the use of unauthorized materials. Even when viewed in a light most favorable
to Pham, these facts fail to make out a constitutional violation. Pham was apprised of the conduct
which led to his expulsion. Moreover, the original charge stated that he violated Rule 3.01.01, which
forbids both the use and possession of unauthorized material. Indeed, as a matter of logic, use of
unauthorized materials encompasses their possession. Thus, the Court finds that Pham received
sufficient notice. Pani is entitled to qualified immunity.
7.

Carradine

Pham also named Carradine, ULM’s in-house counsel, as a Defendant. However, the
Complaint does not demonstrate how she caused any constitutional violation. Accordingly,
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Carradine is entitled to qualified immunity because Pham fails to allege facts sufficient to show that
Carradine committed a constitutional violation or took a wrongful action which caused a
constitutional violation.
In sum, to the extent Defendants’ motion to dismiss seeks qualified immunity for all named
Defendants in their individual capacities, the motion is GRANTED. All claims for monetary
damages against the named Defendants in their individual capacities are DISMISSED WITH
PREJUDICE.
III.

CONCLUSION
For the reasons set forth in this Ruling, Pham’s Motion for a Preliminary Injunction is

DENIED. Defendants’ Motion to Dismiss on qualified immunity grounds is GRANTED, and all
claims against Defendants in their individual capacities for monetary damages are DISMISSED
WITH PREJUDICE.
MONROE, LOUISIANA, this 13th day of July, 2016.

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