Salcido v. University of Southern Mississippi et al

Filing 86

ORDER granting in part and reserving ruling in part on Defendants' 9 Motion for Summary Judgment. The Court grants Defendants' Motion as to Plaintiff's claims under 42 U.S.C. Section 1983. The Court declines to presently address P laintiff's remaining state-law breach of contract claim and order the parties to show cause why the Court should exercise pendent jurisdiction over it, rather than remand it to the Circuit Court of Forrest County, Mississippi. Signed by District Judge Keith Starrett on May 29, 2013 (dsl)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
HATTIESBURG DIVISION
MARIA SALCIDO
V.

PLAINTIFF
CIVIL ACTION NO. 2:11-CV-173-KS-MTP

THE UNIVERSITY OF SOUTHERN
MISSISSIPPI, et al.

DEFENDANTS

MEMORANDUM OPINION AND ORDER
For the reasons stated below, the Court grants Defendants’ Motion for
Summary Judgment [9] as to Plaintiff’s claims under 42 U.S.C. § 1983. The Court
declines to presently address Plaintiff’s remaining state-law breach of contract claim
and orders the parties to show cause why the Court should exercise pendent
jurisdiction over it, rather than remand it to the Circuit Court of Forrest County,
Mississippi.
I. BACKGROUND
This is a Section 1983 case involving alleged discrimination on the basis of race
and national origin in a graduate program at a public university. Plaintiff – a foreignborn Latina – was a graduate student in the marriage and family therapy (“MFT”)
program at the University of Southern Mississippi. To obtain a master’s degree,
students in the program must complete a certain number of clinical hours during
which they provide therapy to clients at the University Clinic or through an
externship. Plaintiff claims that she was assigned fewer clients at the University Clinic
than her American-born, Caucasian peers. She also claims that she was denied
opportunities to participate in externships which were open to her American-born,

Caucasian peers. She complained to multiple administrators, and she alleges that they
failed to remedy the situation, that they failed to follow the University’s grievance
procedures, and that they retaliated against her because of her complaints.
Plaintiff brought this suit against the University and several individuals in their
official and individual capacities. Defendant Saunders was the President of the
University during these events. Defendant West was the chairperson of the
Department of Child and Family Studies, which includes the MFT program. Defendant
Woodrick was the Director of the Office of Affirmative Action/Equal Employment
Opportunity (“AA/EEO”). Plaintiff asserted various claims under 42 U.S.C. § 1983. She
claims that Defendants deprived her of rights guaranteed by the First Amendment,
Fourteenth Amendment Due Process Clause, and Fourteenth Amendment Equal
Protection Clause. She also asserted a state-law claim for breach of contract.
Early in the proceedings, Defendants filed both a Motion to Dismiss [7] and a
Motion for Summary Judgment [9]. The Court eventually allowed Plaintiff to conduct
discovery on all issues presented in Defendants’ dispositive motions, and to amend her
complaint.1 As noted in the Court’s previous order [83], the Amended Complaint [51]

1

As the Court previously noted [83], it allowed this case to go off-track by
permitting wide-ranging discovery. When a defendant asserts an immunity defense
– as Defendants did here – the “district court must first find that the plaintiff’s
pleadings assert facts which, if true, would overcome the defense of qualified
immunity.” Backe v. Leblanc, 691 F.3d 645, 648 (5th Cir. 2012). “After the district
court finds a plaintiff has so pled, if the court remains unable to rule on the
immunity defense without further clarification of the facts, it may issue a discovery
order narrowly tailored to uncover only those facts needed to rule on the immunity
claim.” Id.
In the Court’s experience, however, it is often more efficient for defendants to
2

rendered Defendants’ Motion to Dismiss [7] moot. But the Court decided to consider
Defendants’ Motion for Summary Judgment [9] after allowing Plaintiff an opportunity
to file a sur-reply addressing the post-discovery arguments and evidence presented in
Defendants’ reply. The Motion for Summary Judgment [9] is now ripe.
II. STANDARD OF REVIEW
Rule 56 provides that “[t]he court shall grant summary judgment if the movant
shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a); see also Sierra Club, Inc.
v. Sandy Creek Energy Assocs., L.P., 627 F.3d 134, 138 (5th Cir. 2010). “Where the
burden of production at trial ultimately rests on the nonmovant, the movant must
merely demonstrate an absence of evidentiary support in the record for the
nonmovant’s case.” Cuadra v. Houston Indep. Sch. Dist., 626 F.3d 808, 812 (5th Cir.

reserve some qualified immunity arguments until after the completion of general
discovery. Qualified immunity arguments generally fall into one of two categories:
Rule 12(b)(6)-type arguments that a plaintiff has failed to allege the deprivation of a
clearly established constitutional right, or Rule 56-type arguments that a
defendant’s conduct was objectively reasonable in light of the circumstances.
Typically, the former can be addressed without discovery, while the latter can not.
In the Court’s experience, immunity-related discovery as to the objective
reasonableness of a public official’s actions typically encompasses most – if not all –
of the factual disputes in a case. One would expect this to be the case, as the
defendant’s actions must be assessed in light of the circumstances surrounding
them. Newman v. Guedry, 703 F.3d 757, 762 (5th Cir. 2012). For this reason,
defendants frequently elect to reserve their fact-based qualified immunity
arguments until after general discovery has been completed. See, e.g., Agreed
Motion for Order Regarding Rule 16, Immunity Defenses, and Discovery, Payne v.
Univ. of S. Miss., No. 1:12-CV-41-KS-MTP (S.D. Miss. Mar. 22, 2012), ECF No. 6.
The Court certainly does not discourage this practice, as it consistently yields more
efficient case resolution.
3

2010) (punctuation omitted). The nonmovant “must come forward with specific facts
showing that there is a genuine issue for trial.” Id. (punctuation omitted). “An issue is
material if its resolution could affect the outcome of the action.” Sierra Club, Inc., 627
F.3d at 138. “An issue is ‘genuine’ if the evidence is sufficient for a reasonable jury to
return a verdict for the nonmoving party.” Cuadra, 626 F.3d at 812.
The Court is not permitted to make credibility determinations or weigh the
evidence. Deville v. Marcantel, 567 F.3d 156, 164 (5th Cir. 2009). When deciding
whether a genuine fact issue exists, “the court must view the facts and the inference
to be drawn therefrom in the light most favorable to the nonmoving party.” Sierra
Club, Inc., 627 F.3d at 138. However, “[c]onclusional allegations and denials,
speculation, improbable inferences, unsubstantiated assertions, and legalistic
argumentation do not adequately substitute for specific facts showing a genuine issue
for trial.” Oliver v. Scott, 276 F.3d 736, 744 (5th Cir. 2002).
III. DISCUSSION
A.

Section 1983 Claims Against the University
First, Defendants argue that 42 U.S.C. § 1983 provides no cause of action

against the University because it is not a “person” within the meaning of the statute.
Defendants are correct. “[S]tates and their political subdivisions are not ‘persons’
within the meaning of 42 U.S.C. § 1983.” Cheramie v. Tucker, 493 F.2d 586, 587 (5th
Cir. 1974); see also Will v. Mich. Dep’t of State Police, 491 U.S. 58, 64, 109 S. Ct. 2304,
105 L. Ed. 2d 45 (1989). The University is an arm of the state of Mississippi, and,
therefore, it is not a “person” within the meaning of 42 U.S.C. § 1983. Stotter v. Univ.
4

of Tex., 508 F.3d 812, 821 (5th Cir. 2007); Chestang v. Alcorn State Univ., 820 F. Supp.
2d 772, 779 (S.D. Miss. 2011); Senu-Oke v. Jackson State Univ., 521 F. Supp. 2d 551,
555-56 (S.D. Miss. 2007). For that reason, the Court grants Defendants’ Motion for
Summary Judgment as to Plaintiff’s Section 1983 claims against the University.
B.

Section 1983 Official Capacity Claims
Defendants argue that Plaintiff’s Section 1983 claims against the individual

Defendants in their official capacities should be dismissed for the same reason as
Plaintiff’s Section 1983 claims against the University. Defendants are correct. “[A]n
official-capacity suit is, in all respects other than name, to be treated as a suit against
the entity. It is not a suit against the official personally, for the real party in interest
is the entity.” Kentucky v. Graham, 473 U.S. 159, 166, 105 S. Ct. 3099, 87 L. Ed. 2d 114
(1985). Accordingly, the Court grants Defendants’ Motion for Summary Judgment with
respect to Plaintiff’s Section 1983 claims against the individual Defendants – Martha
Saunders, Rebecca Woodrick, and Charles West – in their official capacities.
C.

Section 1983 Individual Capacity Claims
To make out a Section 1983 claim against a public official in their individual

capacity, a plaintiff must show “that the defendant was either personally involved in
the deprivation or that his wrongful actions were causally connected to the
deprivation.” Jones v. Lowndes County, Miss., 678 F.3d 344, 349 (5th Cir. 2012).
Supervisory officials may be held liable under Section 1983 only if they affirmatively
participate in the acts causing the constitutional violation, or implement
unconstitutional practices that result in constitutional injury. Wernecke v. Garcia, 591
5

F.3d 386, 401 (5th Cir. 2009). “[L]iability under the doctrine of respondeat superior is
not cognizable in § 1983 actions.” Cozzo v. Tangipahoa Prish Council-President Gov’t,
279 F.3d 273, 286 (5th Cir. 2002).
1.

Procedural Due Process

“Procedural due process imposes constraints on governmental decisions which
deprive individuals of ‘liberty’ or ‘property’ interests . . . .” Mathews v. Eldridge, 424
U.S. 319, 332, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976). “[F]or a person to have a
procedural due process claim that damages or other relief can remedy, he must have
been denied life, liberty, or property protected by the Fourteenth Amendment.” Wilson
v. Birnberg, 667 F.3d 591, 597 (5th Cir. 2012). Property or liberty interests may be
“created and defined by existing rules or understandings that stem from an
independent source such as state law,” Id. at 598, including the policies and procedures
of public universities. Bd. of Regents v. Roth, 408 U.S. 564, 578, 92 S. Ct. 2701, 33 L.
Ed. 2d 548 (1972). If a due process entitlement exists, the party enjoying the
entitlement is entitled to “notice and an opportunity to be heard . . . at a meaningful
time and in a meaningful manner.” Gibson v. Tex. Dep’t of Ins. – Div. of Workers’
Comp., 700 F.3d 227, 239 (5th Cir. 2012).
a.

Clinical Assignments

Defendants argue, among other things, that Plaintiff was not deprived of a life,
liberty, or property interest protected by the Fourteenth Amendment. Plaintiff
contends that she had a property interest in the clinical hours and externships that
Defendants allegedly denied. “To have a property interest, . . . a person clearly must
6

have more than an abstract need or desire for it. He must have more than a unilateral
expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Dennis
Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 269-70 (5th Cir. 2012). “No
discretion in the official and a reasonable expectation in the citizen are central
elements of a protected property interest.” Hampton Co. Nat’l Sur. LLC v. Tunica
County, Miss., 543 F.3d 221, 226 (5th Cir. 2008). Plaintiff has not provided any state
law or University policy which creates an entitlement to clinical assignments or
externships.
The MFT Handbook [8-2] provides:
Ability to move into the clinical phase of the program is dependant
on both academic achievements as well as emotional maturity and
professional/ethical behavior.
***
The majority of clinical faculty must agree that the student is
ready to begin seeing clients. Students who are deemed not ready will
work with the faculty to develop a remediation plan in order to progress.
The ability to succeed in a clinical program such as this requires
personal maturity and integrity. It is the responsibility of the faculty to
screen students and to assess their personal qualifications and
professional goals prior to allowing them to enter the clinical component
of the program. During FAM 600, Pre-practicum in MFT, you will be
required to take the 16PF as part of the evaluation process. At the end of
your Pre-practicum, you will meet with the Clinical Faculty to discuss
your readiness to enter the clinical component of the program. At that
time, potential problems or challenges that might impact your success in
the program will be identified. The MFT Program Faculty may
recommend that a student participate in his/her own therapy with an
outside source or take other necessary measures to insure [sic] clinical
readiness. Other measures may include the implementation of a
remediation plan and behavioral contracts that shall be signed by the
student as well as the Program Faculty. Students will be free to withdraw
7

from the program at any time he/she determines that he/she does not
wish to comply with faculty recommendations.
Assessment of student abilities to complete the clinical
requirements is an ongoing process throughout your enrollment in the
program. At the beginning and end of each semester, both supervisory
and teaching faculty will meet to assess the progress of each student.
***
All recommendations are an effort to help you succeed. However,
our primary concern must first be the welfare of the clients seeking
assistance. If, during a student’s program, the clinical faculty assess that
a student does not have the personal and professional maturity needed
to be an effective marriage and family therapy practitioner, the student
will be advised of this and counseled to seek another area of study.
The handbook further provides that students must display “[c]linical readiness as
determined by the faculty” to qualify for externships.
In summary, students may only participate in the clinical program upon the
approval of the clinical faculty. The faculty’s evaluations are ongoing, throughout the
student’s enrollment in the program. If, at any time, students disagree with the
faculty’s evaluation of their preparedness for the clinical setting and they are unwilling
to comply with the faculty’s proposed remedial measures, they are free to withdraw
from the program. These handbook provisions do not create an entitlement, and no
reasonable student would believe they do. Rather, it is clear that students participate
in the clinical program at the discretion of the faculty. Accordingly, Plaintiff had no
property interest in receiving clinical assignments or externships. Cf. Regents of the
Univ. of Mich. v. Ewing, 474 U.S. 214, 223 n. 9, 106 S. Ct. 507, 88 L. Ed. 2d 523 (1985)
(there must be a legitimate claim of entitlement under state law to create a
8

constitutionally protected property interest); Roth, 408 U.S. at 578 (where a university
employment contract “supported absolutely no possible claim of entitlement,” it did not
create a property interest); Dennis Melancon, Inc., 703 F.3d at 270 (“A constitutional
amendment cannot be created – as if by estoppel – merely because a wholly and
expressly discretionary state privilege has been granted generously in the past.”);
Hampton Co. Nat’l Sur. LLC, 543 F.3d at 226.2
b.

Grievance Procedures

Plaintiff may also contend that she was deprived of a constitutionally protected
property interest in the grievance procedures provided by various student handbooks.
“The 5th Circuit has held that where a property right to procedural protections existed
under state law, those procedural guarantees constituted a property interest protected
under due process.” Whiting v. Univ. of S. Miss., 451 F.3d 339, 346 (5th Cir. 2006)
(citing Samuel v. Holmes, 138 F.3d 173, 177 (1998)).
The Graduate Student Handbook [8-2] provides:
Students may file a grievance if experiencing difficulties with other
students, faculty members, staff members, or supervisors; or with the

2

Additionally, it is apparent that the MFT faculty’s decision regarding clinical
assignments and externships entails substantial academic judgment.“[C]ourts are
reluctant to interfere with academic evaluations, particularly at the higher
educational levels.” Senu-Oke v. Jackson State Univ., 283 F. App’x 236, 240 (5th Cir.
2008) (citing Bd. of Curators v. Horowitz, 435 U.S. 78, 85, 98 S. Ct. 948, 55 L. Ed. 2d
124 (1978)). “University faculties must have the widest range of discretion in
making judgments as to the academic performance of students and their
entitlement to promotion or graduation.” Ewing, 474 U.S. at 225 n. 11. “A graduate
or professional school is, after all, the best judge of its students’ academic
performance and their ability to master the required curriculum.” Horowitz, 435
U.S. at 85 n.2.
9

program/departmental rules or procedures. Because graduate students
may serve in several roles, University rules and regulations for resolving
complaints or grievances may vary with the circumstances.
Due process ensures that decisions made about a student’s academic
performance or academic standing in a graduate degree program are not
arbitrary or personally based. Due process requires that decision-making
procedures be fairly applied to all students, appeal procedures are
available to all students, and that students may challenge a decision
without prejudice.
As part of due process, students may appeal any decision that is made by
the university faculty or administration. Students also have the right to
file a grievance regarding actions taken by the university or its
representatives (e.g., faculty, administrators). Appeals and grievances are
separate processes. There may be instances that involve both an appeal
and a grievance, but the two actions will be handled separately. The
department faculty strives to achieve fair and equitable resolution of
complaints or grievances at the earliest possible time and at the lowest
possible level. Thus, students who wish to appeal a decision or seek action
on a matter of grievance are usually encouraged to seek clarification and
review in consultation with a major advisor, the Director of Training, or
the Department chairperson. Students are encouraged to consult with the
Director of Training and/or the Major Professor before bringing concerns
to the attention of the Department Chair.
Next, the MFT Student Handbook [8-2] provides the following Student Grievance
Procedures:
Part of the process of becoming a professional is learning to deal
appropriately with disagreements or grievances. If you experience a
problem with a faculty member you are expected to address those issues
with that person as a first step. If there is not a satisfactory resolution,
you are to make an appointment with the program director (Dr. Hinton)
to discuss it. If you cannot resolve the problem at that level you may seek
an appointment with the department chair (Dr. Ann Blackwell).3
The University of Southern Mississippi Student Handbook further

3

Defendant Charles West was the department chair when the events of this
case occurred.
10

outlines the procedures for student grievances and can be found
beginning on page 66 . . . . Students are strongly encouraged to follow
these outlined procedures when necessary.
Finally, the Student and Faculty Handbook provides the following Discrimination
Complaint Procedure [73-11]:
7.9.4 Formal Complaint Procedure. If any employee4 believes that
he or she has been the subject of discrimination and wishes to make a
formal complaint, the following procedures will apply:
(a)

Complaints must be received in writing in the Office of
Affirmative Action/Equal Employment Opportunity within
30 days from the date of the allegedly discriminatory act. At
the discretion of the AA/EEO Office, in certain situations
complaints filed outside the time limit may be investigated
. . . . The written complaint must include the complainant’s
name, address, and signature and must include a brief
written description of the alleged discriminatory act, as well
as the name of the person allegedly responsible.

(b)

The director of the Office of AA/EEO will meet with the
complainant, explain the complaint procedure, and
determine whether the complaint warrants further
investigation into the allegations. If the director determines
that no discriminatory act has occurred, the AA/EEO Office
will notify the complainant of the decision in writing within
15 days of receipt of the complaint. The notification will
explain why the complaint does not constitute unlawful
discrimination and may inform the complainant of other
avenues of redress, if appropriate.

(c)

If the Office of AA/EEO determines that the complaint may
involve discrimination, the complainant and respondent will

4

The parties described this document as the “Student and Faculty
Handbook,” and the Court takes them at their word. On its face, however, the
document only governs discrimination complaints by employees. The parties did not
address this issue in their briefs, and the record contains no evidence that Plaintiff
was a University employee. Regardless, the Court will assume that the document is
applicable here.
11

be notified of the decision in writing. The director of the
Office of AA/EEO will investigate the allegations. The
director will inform the following parties that a complaint
has been filed and that an investigation will be conducted:
the complainant, respondent, respondent’s immediate
supervisor and department head, respondent’s dean, the
Provost, and the President.
(d)

Upon completion of the investigation, the director of the
Office of AA/EEO will issue a written report stating the
findings of the investigation and whether there is sufficient
evidence to support the allegations of the complaint. The
director shall issue written notice of the decision to the
parties set out in paragraph (3) above.

(e)

If the director finds that a violation of University policy has
occurred, the director will recommend to the Provost that a
directive be issued to stop the discriminatory behavior and
recommending appropriate disciplinary action against the
respondent. When appropriate, coercive action will be
recommended to eliminate the effect of the discriminatory
behavior. Within 15 days of the receipt of the report from
the AA/EEO director, the Provost will issue written notice
of disciplinary action.

7.9.5 Appeal Procedure. The complainant or respondent may appeal
the decisions of the AA/EEO director and/or the decision of the Provost by
notifying the President, in writing, within 15 days from the date of the
decision from which the party appeals. The complainant or respondent
may request a review based upon the following grounds:
(a)

That the complaint procedure was not followed.

(b)

That new information can be presented that was not
previously available and which could have a material affect
upon the findings. The President shall be the sole judge of
whether such evidence or information will be admitted.

(c)

That a decision was made in an arbitrary and capricious
manner.

At the time of the appeal, the appellant shall file a detailed, written
explanation why he or she believes the appeal meets the criteria set forth
12

above. If the President determines that none of the grounds for appeal
has been satisfied, the parties shall be notified of the decision in writing
within 15 days of filing the appeal. If the President determines that at
least one of the grounds for appeal has been met, the President shall so
notify all of the parties in writing. The President will review all materials
in the record and may invite both parties to present information to the
President. Once the President has reached a decision, he or she shall
notify all parties of the decision within 30 days from the date the appeal
was filed.
The grievance procedures in the Graduate Student Handbook and MFT
Handbook do not impose any duties on Defendant Saunders. The Student and Faculty
Handbook’s Formal Complaint Procedure only brings Saunders into the process at the
time of appeal, and it is undisputed that Plaintiff did not appeal the AA/EEO Office’s
actions. Therefore, Saunders did not personally deprive Plaintiff of any grievance
procedures, and Saunders can only be liable for the actions of her subordinates if she
affirmatively participated in their actions or implemented unconstitutional practices
that caused Plaintiff’s injury. Wernecke, 591 F.3d at 401. Plaintiff has not produced any
evidence of such participation or implementation, and her procedural due process claim
against Saunders fails.
As for Defendant West, the Student and Faculty Handbook’s grievance
procedure imposes no duties on department chairs. The Graduate Student Handbook
and MFT Handbook merely encourage students to consult with the department
chairperson. Neither document imposes duties on department chairpersons in
resolving a student appeal or grievance. Plaintiff requested a meeting with West in
December 2008 [73-9]. Although he encouraged her to first meet with Dr. Hinton (the
Clinical Director) and Dr. Grames (the Program Director), Plaintiff admits [48-1] that
13

West met with her. If the Graduate Student Handbook and MFT Handbook imposed
any duty on West, it was merely that he meet with Plaintiff. He did so, and Plaintiff
has not presented any evidence that he affirmatively participated in any
unconstitutional actions or implemented unconstitutional procedures. Id. Therefore,
Plaintiff’s procedural due process claim against him fails.
Neither the Graduate Student Handbook nor the MFT Handbook impose any
duty on Defendant Woodrick, the Director of the Office of AA/EEO. As for the Student
and Faculty Handbook’s procedures, Defendant admits that Woodrick failed to follow
them. Plaintiff filed her AA/EEO complaint [73-13] on June 2, 2009. Woodrick asked
[73-14] for a meeting to clarify Plaintiff’s claims, and Plaintiff informed Woodrick that
she had retained counsel. Woodrick forwarded Plaintiff’s AA/EEO complaint to the
University’s attorney, who stated that he would arrange a meeting with Plaintiff and
her counsel. That meeting never occurred, though, and the procedures outlined in the
Student and Faculty Handbook were not followed.
Defendant argues that Defendant Woodrick enjoys qualified immunity from
liability for Plaintiff’s procedural due process claims. After a defendant invokes the
defense of qualified immunity, the plaintiff has the burden of proving its
inapplicability. Tolan v. Cotton, 713 F.3d 299, 2013 U.S. App. LEXIS 8548, at *11 (5th
Cir. 2013). The plaintiff must show: “first, the official’s conduct violated a
constitutional or statutory right; and second, the official’s actions constituted
objectively-unreasonable conduct in the light of clearly established law at the time of
the conduct in question.” Id. (punctuation omitted). “The second prong of the qualified
14

immunity test is understood as two separate inquiries: whether the violated
constitutional rights were clearly established at the time of the accident; and, if so,
whether the defendant’s conduct was objectively unreasonable in the light of that then
clearly established law.” Id. (punctuation omitted).5 The reasonableness of the
defendant’s actions must be judged from the perspective of a reasonable official in the
same situation with the same knowledge. Newman, 703 F.3d at 762 (officer’s actions
judged from perspective of a reasonable officer confronted by the same facts and
circumstances, without regard to intent or motivation).
Plaintiff has not carried her burden of demonstrating that Woodrick’s actions
were objectively unreasonable under the circumstances. When Woodrick received
5

Plaintiff argues that qualified immunity does not apply in racial
discrimination cases, but she did not cite any authority in support of this argument.
When a plaintiff’s allegations are sufficient to state a claim for intentional
discrimination, an immunity defense will generally be foreclosed at the prediscovery stage, as intentional racial discrimination is never objectively reasonable.
See Piatt v. City of Austin, 378 F. App’x 466, 469 (5th Cir. 2010); Blackwell v. Laque,
275 F. App’x 363, 367-68 (5th Cir. 2008) (where plaintiff established a prima facie
case of racial discrimination and the court was required to view the facts in the
light most favorable to plaintiff, employer’s actions were not objectively reasonable
under clearly established law); Upchurch v. City of Moss Point, 2011 U.S. Dist.
LEXIS 124116, at *21-*22 (S.D. Miss. Oct. 26, 2011); Patton v. Hinds Cnty. Juvenile
Det. Ctr., 2011 U.S. Dist. LEXIS 77955, at *36 (S.D. Miss. July 18, 2011). Likewise,
it is not objectively reasonable for a government authority to violate a citizen’s
constitutional rights, and genuine disputes of material fact on that issue will
foreclose the application of a qualified immunity defense at the summary judgment
stage. See, e.g. Izen v. Catalina, 382 F.3d 566, 574 (5th Cir. 2004).
Here, the parties conducted discovery, and there is a pending motion for
summary judgment. It is appropriate, therefore, for the Court to assess the evidence
and determine whether any genuine dispute of material fact exists on these issues.
Qualified immunity may apply if there is no genuine dispute of material fact
regarding Woodrick’s motivation in deviating from the standard grievance
procedures.
15

Plaintiff’s complaint, Plaintiff had been “passively threatening legal action” [73-9] for
several months. When Woodrick contacted Plaintiff to schedule an appointment,
Plaintiff had retained an attorney who had filed numerous lawsuits against the
University.6 Accordingly, Woodrick decided that she should proceed through counsel.
The record contains no evidence that this decision was motivated by discriminatory
intent. Plaintiff has not provided any evidence or law demonstrating that Woodrick’s
departure from the University’s formal grievance procedure was objectively
unreasonable in light of these circumstances. Therefore, Woodrick enjoys qualified
immunity with respect to Plaintiff’s procedural due process claim.
2.

Substantive Due Process

“Substantive due process bars certain arbitrary, wrongful government actions
regardless of the fairness of the procedures used to implement them.” Lewis v. Univ.
of Tex. Med. Branch, 665 F.3d 625, 630 (5th Cir. 2011). It “requires only that public
officials exercise professional judgment, in a nonarbitrary and noncapricious manner,
when depriving an individual of a protected property interest.” Id. at 631. The “plaintiff
must show that the decision was made without a rational connection between the
known facts and the decision or between the found facts and the evidence.” Id. The
public official’s actions must shock the conscience. Id. Plaintiff’s substantive due
6

See, e.g., Notice of Removal, Whiting v. Univ. of S. Miss., No. 2:02-CV-781IRL (S.D. Miss. Sept. 19, 2002), ECF No. 1; Notice of Removal, McKean v. Univ. of
S. Miss., No. 2:05-CV-34-KS-MTP (S.D. Miss. Jan. 31, 2005), ECF No. 1; Notice of
Removal, Luce v. Univ. of S. Miss., No. 2:06-CV-240-KS-MTP (S.D. Miss. Oct. 23,
2006), ECF No. 1; Notice of Removal, Nichols v. Univ. of S. Miss., No. 2:08-CV-128KS-MTP (S.D. Miss. June 12, 2008), ECF No. 1.
16

process claims arise from Defendants’ alleged failure to provide her with the
opportunity to obtain enough clinical hours to obtain a Masters degree in marriage and
family therapy. Plaintiff contends that Defendants deprived her of the chance to gain
clinical hours because of her race, ethnicity, or national origin. Plaintiff’s substantive
due process claims fail for two reasons.
First, it is undisputed that none of the individual Defendants made the decisions
which allegedly deprived Plaintiff of a constitutionally protected interest. Saunders
was the University’s president, and Woodrick was the director of the office of AA/EEO.
Neither had any involvement with the MFT program’s internal academic affairs. West
was the chairperson of the Department of Child and Family Studies, which includes
the MFT program. But Plaintiff has not presented any evidence that he made decisions
regarding clinical assignments or externships. Rather, the evidence indicates that his
subordinates made those decisions, and none of them were named as defendants in this
action. Plaintiff has not presented any evidence that West affirmatively participated
in the decisions regarding clinical assignments or externships, or that he implemented
an unconstitutional practice that caused her to receive fewer clinical hours. See
Wernecke, 591 F.3d at 401. Therefore, he is not liable for the alleged deprivation.
Second, Plaintiff did not have a constitutionally protected property interest in
receiving clinical assignments or externships. As explained above, students may only
participate in the clinical program upon the approval of the clinical faculty. The MFT
Handbook does not create an entitlement to clinical hours, and no reasonable student
would believe it does. Students participate in the clinical program at the discretion of
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the faculty. Accordingly, Plaintiff had no constitutionally protected property interest
in receiving clinical assignments or externships. Cf. Ewing, 474 U.S. at 223 n. 9; Roth,
408 U.S. at 578; Dennis Melancon, Inc., 703 F.3d at 270; Hampton Co. Nat’l Sur. LLC,
543 F.3d at 226.7
3.

Equal Protection

“To establish a Fourteenth Amendment equal-protection claim, [Plaintiff] must
allege and prove that [she] received treatment different from that received by similarly
situated individuals and that the unequal treatment stemmed from a discriminatory
intent.” McFaul v. Valenzuela, 684 F.3d 564, 577 (5th Cir. 2012). Plaintiff’s equal
protection claims stem from two alleged inequalities. First, she claims that Defendants
gave her fewer clinical hours than they gave Caucasian and American-born students.
But, as explained above, none of the individual Defendants made decisions regarding
clinical assignments and externships. Second, Plaintiff argues that Defendants failed
to remedy what she believed was unlawful discrimination, but she failed to identify a
similarly situated individual of a different race, ethnicity, or national origin whose
complaints of discrimination were handled differently. For these reasons, her equal
protection claims fail.
4.

First Amendment

Plaintiff claims that Defendants retaliated against her for criticizing one of her

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Also, the Court is “reluctant to interfere with academic evaluations,
particularly at the higher educational levels.” Senu-Oke, 283 F. App’x at 240; see
also Ewing, 474 U.S. at 225 n. 11; Horowitz, 435 U.S. at 85 n.2.
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professors and claiming that she was a victim of unlawful discrimination. She claims
they denied clinical assignments and externships and revealed her confidential
assessment of one of her professors in retaliation for her speech. “The First
Amendment prohibits not only direct limitations on speech but also adverse
government action against an individual because of her First Amendment freedoms.”
Izen v. Catalina, 398 F.3d 363, 367 (5th Cir. 2005). To make out a retaliation claim, a
plaintiff “must show that (1) they were engaged in a constitutionally protected activity,
(2) the defendant’s actions caused them to suffer an injury that would chill a person of
ordinary firmness from continuing to engage in that activity, and (3) the defendants’
adverse actions were substantially motivated against the plaintiff’s exercise of
constitutionally protected conduct.” Id. (punctuation omitted).
Plaintiff’s First Amendment retaliation claims suffer from a fundamental flaw:
she has not provided evidence showing that the individual Defendants participated in,
approved, or implemented policies which caused the alleged constitutional injuries. See
Wernecke, 591 F.3d at 401; Cozzo, 279 F.3d at 286. As the Court already noted, the
record contains no evidence that the individual Defendants made decisions regarding
clinical assignments and externships. Plaintiff also failed to provide evidence that the
individual Defendants revealed the disputed teachers’ evaluation. In fact, Plaintiff
affirmed [73-2, 73-23] that the alleged retaliatory acts were committed by individuals
who are not parties to this lawsuit. Accordingly, Plaintiff’s First Amendment
retaliation claims against the individual Defendants fail.
IV. BREACH OF CONTRACT
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The Court presently declines to address Defendants’ Motion for Summary
Judgment [9] as it relates to Plaintiff’s remaining state-law claim for breach of
contract. The Fifth Circuit’s general rule is to “dismiss state claims when the federal
claims to which they are pendent are dismissed.” Enochs v. Lampasas Cnty., 641 F.3d
155, 161-62 (5th Cir. 2011). The Court orders the parties to show cause why it should
exercise pendent jurisdiction over Plaintiff’s breach of contract claim, rather than
remand it to the Circuit Court of Forrest County, Mississippi. Each side shall file a
brief within seven (7) days of the entry of this opinion, and each side may then have
seven (7) days to file a response to the opposing party’s brief, if necessary.
V. CONCLUSION
For the reasons stated above, the Court grants Defendants’ Motion for
Summary Judgment [9] as to Plaintiff’s claims under 42 U.S.C. § 1983. The Court
declines to presently address Plaintiff’s remaining state-law breach of contract claim
and orders the parties to show cause why the Court should exercise pendent
jurisdiction over it, rather than remand it to the Circuit Court of Forrest County,
Mississippi.
SO ORDERED AND ADJUDGED this 29th day of May, 2013.
s/Keith Starrett
UNITED STATES DISTRICT JUDGE

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