Al-Asbahi v. The West Virginia University Board of Governors et al

Filing 106

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT (DKT. NO. 49 ) AND DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT (DKT. NO. 52 ). The Court GRANTS the Defendants' 49 Motion for Summary Judgme nt; DENIES Al-Asbahi's 52 Motion for Partial Summary Judgment; DISMISSES Counts I, II, III and IV of the Complaint WITHOUT PREJUDCE as they apply to the WVU Board and the official capacity defendants, but WITH PREJUDICE as they apply to the in dividual capacity defendants; and DISMISSES Counts V, VI, and VII of the Complaint WITHOUT PREJUDICE. The Clerk is directed to enter a separate judgment order in this matter. Signed by District Judge Irene M. Keeley on 1/30/17. (mh) (Main Document 106 replaced on 1/30/2017 with correct document) (mh). Modified on 1/30/2017 (mh). NEF regen

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA
BASIL AL-ASBAHI,
Plaintiff,
v.

CIVIL ACTION NO. 1:15CV144
(Judge Keeley)

THE WEST VIRGINIA UNIVERSITY BOARD
OF GOVERNORS, THE WEST VIRGINIA
UNIVERSITY SCHOOL OF PHARMACY, DR.
ELIZABETH SCHARMAN, DR. TERRENCE L.
SCHWINGHAMMER, DR. JAY L. MARTELLO,
DR. PATRICIA CHASE, DR. LENA MAYNOR,
DR. MARY EULER, DR. CHRISTOPHER C.
COLENDA, and DR. CHADRICK LOWTHER, in
their official and individual capacities,
Defendants.
MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Pending for consideration is the motion for summary judgment
(dkt. no. 49) filed collectively by the defendants. Also pending is
the motion for partial summary judgment (dkt. no. 52) filed by the
plaintiff, Basil Al-Asbahi (“Al-Asbahi”). For the reasons that
follow, the Court GRANTS the defendants’ motion and DENIES AlAsbahi’s motion.
1. FACTUAL BACKGROUND1
Al-Asbahi is Syrian of Arabic descent, a practitioner of Islam,
a native of Logan, West Virginia, and a graduate of Marshall

1

As it must, the Court construes the facts in the light most
favorable to the non-movant. See Ussery v. Manfield, 786 F.3d 332,
333 (4th Cir. 2015).

AL-ASBAHI v. THE WVU BOARD OF GOVERNORS, ET AL.

1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
University. On August 24, 2009, the West Virginia University School
of Pharmacy (“SOP”) admitted him into its Doctors of Pharmacy
Program

(“Program”).

semesters

over

“didactic”

or

four

The

Program

years

classroom

with

normally
the

instruction,

consists

of

eight

first

six

consisting

and

the

remaining

of
two

consisting of “experiential” rotations. Rotations are five weeks in
length and administered by a “preceptor” who supervises and grades
the student’s performance. Preceptors may be faculty members or
practicing pharmacists working at various sites throughout the
state.
Al-Asbahi began to struggle early in the Program. In his first
semester, Fall 2009, he received a “D” in “PHAR 702 - Physical
Pharmacy,” which automatically placed him on academic probation
(dkt. no. 49-1 at 119-21). His probationary status meant that a
second “D” would, at a minimum, “necessitate repeating all required
courses with a grade lower than ‘C’.” Id. at 119. Finally, the terms
of his probation mandated that he maintain a semester grade point
average of 2.5 or higher in his elective courses, and that he
receive grades of “C” or better in all of his Spring 2010 classes
before the SOP would lift his probation. Id. Al-Asbahi complied with

2

AL-ASBAHI v. THE WVU BOARD OF GOVERNORS, ET AL.

1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
the terms of his probation during the following semester, and the
SOP lifted his probationary status.
In his third semester, Fall 2010, however, Al-Asbahi regressed,
earning two grades of “D” and a semester grade point average of
2.07.2 Consequently, on December 29, 2010, the SOP’s Academic
Professional Standards Committee (“Committee”)3 informed him that
it was recommending to Dean Patricia Chase (“Dean Chase”) that she
dismiss him from the Program (dkt. no. 49-1 at 125). Al-Asbahi
appealed the recommendation. Following a hearing on January 10,
2011, the Committee denied his appeal, reasoning that “in light of
the objective academic data we feel continuation through the program
at this time is not appropriate” (dkt. no. 49-1 at 138).
On January 20, 2011, Al-Asbahi submitted a letter to the
Committee, together with a proposed study plan, seeking permission
to apply for readmission to the Program. After reviewing his
submissions, the Committee recommended to Dean Chase that she

2

Al-Asbahi’s grades of “D” came in “Pharmacology I - PCOL 743”
and “Medical Literature Evaluation - PHAR 727.”
3

The Committee has an ongoing responsibility to determine after
every semester whether each student “continues to meet a set of
academic requirements, standards, and criteria for successful
completion of the curriculum.” Dkt. no. 49-1 at 119. In furtherance
of this responsibility, it evaluates each student following every
semester.

3

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
consider Al-Asbahi for readmission in the Fall 2011 semester — but
only under certain explicit conditions. By letter dated March 4,
2011, Dean Chase accepted the Committee’s recommendation, but with
some modifications. As an initial matter, she required that AlAsbahi agree to enroll in and satisfactorily complete alternative
course work prior to his readmission in August, 2011. If he
complied, the SOP would readmit Al-Asbahi as a “P2" (second year
pharmacy student), subject to the following additional conditions
for the remainder of his time in the Program:
1.
2.
3.
4.

He must retake all required courses beginning with the P2
year4;
He would re-enter the Program on academic probation and
remain so until graduation;
He must earn a grade of at least “C” for all required
courses5;
He must complete all experiential rotations with
satisfactory evaluations in all competencies6; and

4

This was one of Dean Chases’s significant modifications. The
Committee’s had recommended that Al-Asbahi be readmitted as a P1,
which would have required him to retake all required courses from
the beginning of the Program (dkt. no. 49-1 at 134).
5

This was another of Dean Chases’s significant modifications
to the Committee’s recommendations, as it had suggested that AlAsbahi be required to receive no less than a “B” in all required
courses (dkt. no. 49-1 at 134).
6

Students normally needed a satisfactory average across all of
the course’s competencies in order to pass an experiential rotation.
Al-Asbahi’s lowest evaluation in any one of a course’s individual
competencies could not dip below the satisfactory level of “3".

4

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
5.

He must submit a comprehensive study schedule two weeks
prior to each semester during the didactic portion of the
Program, which the Committee would review and approve.

Dean Chase also warned Al-Asbahi that he was in “an extremely
tenuous position,” as this was “one final opportunity to demonstrate
[he] should receive the Pharm D. degree from WVU” (dkt. no. 49-1 at
136). Al-Asbahi accepted these conditions, enrolled in and passed
a pharmacology course at Duquesne University, and, on June 17, 2011,
submitted his application for readmission to the Program for the
Fall 2011 semester, which the SOP granted. Id. at 128-29. During the
next three semesters, Fall 2011, Spring 2012, and Fall 2012, AlAsbahi progressed in the Program without incident, earning grade
point averages (“GPA”) of 3.20, 3.06, and 3.13 respectively (dkt.
no. 53 at 39).
Nevertheless, in the Spring 2013 semester, Al-Asbahi once again
struggled.

As

it

does

following

each

semester,

the

Committee

reviewed every SOP student’s academic progress (dkt. no. 49-1 at
119). In reviewing his progress, it realized that Al-Asbahi received
three grades of “C”, making his semester GPA 2.37. Consequently,
because he fell below the 2.5 minimum GPA threshold established by

Professors graded each student’s course competencies on a scale of
1 (lowest) to 5 (highest), with a score of 3 being satisfactory.

5

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
the terms of his readmission, the Committee recommended that Dean
Chase dismiss Al-Asbahi from the Program (dkt. no. 49-1 at 155).
At the request of Dean Chase, however, the Committee spared him
from dismissal. Instead, it formulated a remediation plan, which the
Dean approved, that was intended to improve Al-Asbahi’s chances at
successfully

completing

the

Program

and

passing

his

Board

examination. Id. In addition to continuing all of the previously
imposed terms of his readmission, the Committee also required that
he

study

for

and

retake

all

the

examinations

for

“Pharmacotherapeutics IV - PHAR 740" and “Pharmacokinetics - PHAR
741.” Id. at 143. Furthermore, the SOP would inform all of the
preceptors

for

his

experiential

classes

that

Al-Asbahi

would

“require close monitoring . . . while on their rotation.” Id.
Finally, the Committee noted Al-Asbahi’s “history of marginal
performance”

and

reminded

him

that

his

failure

to

pass

any

competency in any rotation, up to and including his final one, or
his failure to receive grades of at least 70% on all of the retaken
exams, would result in his dismissal from the program. Id.

6

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Al-Asbahi appealed the remediation plan, claiming that it set
him up to fail and that he was being treated unfairly.7 Id. at 146.
Dr.

Elizabeth

Scharman

(“Scharman”),

Chair

of

the

Committee,

informed Dean Chase that the Committee was not inclined to hear his
appeal and suggested instead that perhaps she should personally
review his appeal, to which Dean Chase responded that Al-Asbahi
should first be given a chance to meet with the Committee. Id. at
154-55. Following a hearing on July 3, 2013, the Committee denied
Al-Asbahi’s

appeal,

noting

that

“[i]n

light

of

the

objective

academic data, we feel that decreasing the rigorousness of the
remediation plan would not be appropriate.” Id. at 159. Unsatisfied,
he then appealed the Committee’s decision to Dean Chase. Id. at 161.
On August 19, 2013, Dean Chase, together with Dr. Mary Euler
(“Euler”), Associate Dean for Student Services, met with Al-Asbahi
and his parents to discuss the remediation plan and the Committee’s
decision.

Id.

at

163.

Once

again,

Dean

Chase

modified

the

Committee’s recommendation in Al-Asbahi’s favor, eliminating the

7

One of Al-Asbahi’s main complaints related to the notice that
the SOP was to provide to his future preceptors indicating he would
need close monitoring (dkt. no. 49-1 at 146). The Committee relayed
to him the limited information preceptors would receive and informed
him that it felt obligated to do such for patient safety (dkt. no.
49-1 at 151-52).

7

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
requirement

that

he

retake

and

pass

the

exams

for

“Pharmacotherapeutics IV - PHAR 740,” but leaving all the other
requirements intact. Id. During his deposition, Al-Asbahi indicated
that he was “pleased” with this outcome. Id. at 21.
Al-Asbahi then began what would have been his final year in the
Program, which consisted solely of experiential rotations, also
referred to as “Blocks.”8 The preceptor for his fourth rotation,
Acute Care I, was defendant, Dr. Chadrick Lowther (“Lowther”), a
non-faculty, cardiac clinical specialist at the Charleston Area
Medical Center (“CAMC”). Al-Asbahi knew that Acute Care I was one
of the more difficult rotations, and that Lowther in particular had
a reputation for being a difficult preceptor (dkt. no. 49-1 at 25,
28). Al-Asbahi’s rotation with Lowther was short-lived.
Within the rotation’s first two days,9 Lowther began to notice
what he considered to be substantial deficiencies in Al-Asbahi’s
academic performance and knowledge base (dkt. no. 49-4 at 5).

8

There are a total of eight “Blocks” of experiential rotations,
which began in the Spring 2013 semester of Al-Asbahi’s third year.
Normally, as of the fourth year, all of the didactic (classroom)
courses are complete, and all that remains are experiential
rotations.
9

The second day is, in effect, the first
experiential rotation, as the first day is
orientation.

8

day of actual
generally for

AL-ASBAHI v. THE WVU BOARD OF GOVERNORS, ET AL.

1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Concerned, Lowther informed his immediate supervisor at CAMC, the
Director of Clinical Services, Dr. Brian Hodges (“Hodges”), who in
turn told him to inform the head of the SOP’s experiential learning
program, Dr. Lena Maynor (“Maynor”). Id. at 6; see also dkt. no. 56
at 37 (Maynor’s notes from conversation with Lowther). At Maynor’s
request,

Lowther

began

to

track

Al-Asbahi’s

progress

in

the

rotation, keeping written notes detailing his performance on a daily
basis. Id.; dkt. no. 49-1 at 236-43.
On October 1, 2013, just over two weeks after Al-Asbahi had
begun his rotation with Lowther, Hodges emailed Maynor to inform her
that,

based

on

his

own

“observation

as

clinical

director,

supervising and evaluating Mr. Al-Asbahi is taking an undue amount
of time and effort, and is preventing his preceptor from the
efficient conduct of his responsibilities to CAMC” (dkt. no. 49-1
at 245). Consequently, Hodges asked that the SOP “remove [Al-Asbahi]
from his experience immediately, so that the preceptor may return
to completing his normal duties.” Id. The next day, Hodges told AlAsbahi that he was pulling him off the rotation to avoid a failing
grade. Maynor also informed Al-Asbahi by email dated October 1,
2013, and in a telephone call on October 2, that he should not

9

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
return to CAMC due to its request that he be removed.10 In her
follow-up email on October 2, 2013, Maynor informed Al-Asbahi that,
based on the grading policy for experiential rotations, and contrary
to Hodges’s statements, he would receive a failing grade as a result
of his removal from the rotation. Id. at 258. As a result, Dean
Chase wrote a letter to Al-Asbahi on October 7, 2013, informing him
that his failure to complete the rotation was a violation of the
terms of his remediation plan, and she therefore was dismissing him
from the Program. Id. at 253.
On October 15, 2013, Al-Asbahi submitted a written appeal of
his dismissal to WVU Vice President Dr. Fred Butcher (“Butcher”)
(dkt. no. 49-1 at 255-56). His primary contention was that his
removal from the rotation was not in accord with the procedures
outlined in the West Virginia University School of Pharmacy Policy
on Academic and Professional Standards Governing the Doctor of
Pharmacy Degree Program (“Policy”). Id. Butcher agreed, finding that
the SOP dismissal had not conformed with Chapter 4 of the Policy

10

Maynor also informed Al-Asbahi that, based on its contractual
agreement with the SOP, CAMC had sole discretion to remove students
from rotations at its facility (dkt. no. 49-1 at 258). Moreover,
because he was not allowed to return to CAMC, Al-Asbahi received a
grade of incomplete for the other rotation he was taking at CAMC,
“Elective Rotation 2 - PHAR 765" (dkt. no. 53 at 40).

10

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
governing “Procedures for Failure to Complete an Experiential
Rotation.”11 Id. at 268-69. After explaining his findings, Butcher
reversed Al-Asbahi’s dismissal from the Program and changed his
grade in Lowther’s rotation from an “F” to an “I”. Id. In concluding
his letter, Butcher reminded Al-Asbahi that he was still subject to
the remediation plan, specifically quoting from it that “failure to
pass any competency in any rotation, up to and including Block 8,
will result in your dismissal from the degree program.” Id. at 269.
Finally, the letter informed Al-Asbahi that the SOP would provide
him

with

an

academic

schedule

setting

forth

the

remaining

requirements for his graduation. Id.
On November 20, 2013, Dean Chase wrote to Al-Asbahi, outlining
the requirements for completion of the Program. Id. at 271. In
addition to reminding him of his outstanding requirement to retake

11

Specifically, Butcher found that: (1) Hodges’s reason for
removal, that the preceptor required an “undue amount of time and
effort” to supervise him, was not among those specifically
enumerated in Chapter 4, § 4.2 of the Policy, nor was a facility’s
unilateral power to remove a student contained in the Policy; (2)
Chapter 4, § 4.4 of the Policy indicates that a removed student will
receive a grade of “F” or an incomplete “I”, depending on the reason
for the removal, however, the reasons for Al-Asbahi’s removal were
unclear; (3) communication between Lowther, Al-Asbahi, and Maynor
regarding any deficiencies, did not conform with the policy; and (4)
Lowther did not provide Al-Asbahi with written evaluations informing
him of the improvement expectations.

11

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
the exams in “Pharmacokinetics - PHAR 741,” the letter made further
recommendations that he not only retake the exams, but also complete
the

entire

course,

as

well

as

recommending

that

he

audit

“Pharmacotherapeutics - PHAR 740.” Id. Dean Chase also informed AlAsbahi that all of his future preceptors would be SOP faculty
members because they were “the best preceptors to teach [him] any
concepts

that

[he

had]

not

yet

mastered.”

Id.

This

latter

requirement resulted in a delay until the Summer of 2104 before he
could begin his next rotation. Al-Asbahi wrote to Dean Chase to
express his discontent with the faculty preceptor requirement but,
following a meeting between the two on December 6, 2013, she held
firm. Id. at 40, 273-74.
During the first half of the Summer 2014 semester, Al-Asbahi
enrolled in “Ambulatory Care Rotation I - PHAR 762" with preceptor
Dr. Jonathan Kline, receiving passing marks in all competencies
(dkt. nos. 53 at 40; 49-1 at 40). Thereafter, he enrolled to retake
the Ambulatory Care I rotation, this time with Dr. Jay Martello
(“Martello”) as his preceptor.12 Within the first few days of the
rotation,

Al-Asbahi

spoke

with

12

Martello

to

ask

how

he

was

Al-Asbahi had previously taken a course with Martello during
his P3 year and, according to him, “it went fine.” Dkt. no. 49-1 at
42.

12

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
progressing (dkt. no. 49-1 at 42). Martello informed him that he was
aware of his situation, apparently referring to the notice that AlAsbahi required close monitoring, and later indicated that, although
it was too early to tell for sure, it seemed like he did have a
“knowledge-based deficiency” (dkt. no. 55-2 at 112-16).
At

the

midpoint

of

the

rotation,

Martello

completed

his

evaluation of Al-Asbahi (dkt. no. 49-1 at 276-80). That midpoint
evaluation assigned Al-Asbahi three scores of “2 - Needs Substantial
Assistance” in the competencies of “Pharmacy Knowledge,” “Collecting
Patient Data,” and “Review Medication Orders.” Id. Notably, AlAsbahi failed to earn a single grade higher than “3 - Meets
Expectations."13 Id. Contemporaneously, Martello sent a letter to
Maynor and Euler, notifying them that he was giving Al-Asbahi three
scores of “2" and detailing the numerous deficiencies observed thus
far

in

the

rotation,

including

substantial

knowledge-base

deficiencies. Id. at 282-83. Martello also stated that he had met
with Al-Asbahi to discuss his evaluation and concerns. Id. Martello
informed Maynor and Euler that he had provided Al-Asbahi with a plan

13

Even a student who was not in Al-Asbahi’s situation, who had
failed to earn a single score above “3" in any competency, would
have been living dangerously as, even for that student, a single
competency dropping to a “2" would have earned them a failing grade
for the rotation.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
for improvement moving forward, and he indicated that Al-Asbahi
understood and agreed. Id. Martello copied Al-Asbahi on the letter.
Id. at 283, 284.
Following his receipt of Martello’s letter on July 13, 2014,
Al-Asbahi contended that it disclosed his deficiencies in far more
detail than Martello had discussed with him, and that it added
additional items beyond those previously discussed (dkt. no. 55-2
at 123-24; dkt. no. 53 at 44). The two met the following day to
discuss the contents of the letter, following which Martello emailed
Al-Asbahi, memorializing their conversation and indicating that, on
that first day of rotation following his midpoint evaluation, he saw
“good improvement” compared to the previous week (dkt. no. 55-2 at
125; dkt. no. 53 at 45). Further, he advised Al-Asbahi to “keep
doing what you did today for the remainder of the rotation, being
interactive, and ‘going deeper’ when looking up information.”14 Id.

14

Notably, Al-Asbahi latches on to this statement repeatedly to
infer that, based on Martello’s laudatory words the first day
following his subpar evaluation, he therefore must have been in that
constant state of improvement thereafter. There is no evidence that
Martello felt that way. On the contrary, there is evidence in
Martello’s notes and final evaluation that Al-Asbahi’s improvement
was short-lived.

14

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Just two days later, however, on July 16, 2013, Al-Asbahi
missed a formulary meeting. There were three midday meetings AlAsbahi was required to attend that day, including a 12:00 “noon
conference,” a 12:30 “formulary conference,” and a 1:30 “clinical
conference” (dkt. no. 49-10 at 3). Following the rotations that
morning, Al-Asbahi had asked a classmate, Eric Likar (“Likar”),
where the formulary meeting was going to take place that day, and
Likar inadvertently told him it was in the same room as the noon
conference, 48E, which was, in fact, the wrong location (dkt. no.
55-3 at 4-5).
Al-Asbahi sat through the noon conference in room 48E, but when
the subject matter changed to a topic unrelated to formulary after
12:30, he realized he was in the wrong meeting room and left. Id.
at 9-10. He went to what he believed was the correct room but found
the door closed. Id. at 10. Rather than attempt to enter the room,
he went to Martello’s office and sat outside waiting to explain his
absence. Id.; dkt. no. 49-1 at 296. Shortly thereafter, Martello
rushed from his office and, although he noticed Al-Asbahi, he said
nothing, instead rushing off to the formulary conference (dkt. no.
55-3 at 10). Inexplicably, Al-Asbahi did not follow Martello to the
conference, instead resolving himself to the fact that he had made

15

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
a mistake and missed the conference. Id. For reasons unknown, AlAsbahi also failed to attend the clinical conference at 1:30 that
afternoon. Id. at 16; dkt. no. 56 at 43.
Early the following morning, Al-Asbahi wrote to Martello in
hopes of explaining his failure to attend the meetings, again
reiterating the incorrect room number given by Likar, but not
mentioning any reason for missing the 1:30 conference (dkt. no. 49-1
at 298). Martello responded by acknowledging the confusion and
recognizing that “errors like this do happen,” but also reminding
Al-Asbahi that the schedule was posted and it was his responsibility
to attend. Id. He went on, stating he doubted Al-Asbahi’s claim that
the door was shut when he arrived at formulary and suggesting that
he either did not make it to formulary at all, or was late.15 Id. at
299.

Further,

he

noted

that

he

had

checked

with

some

other

individuals regarding Al-Asbahi’s whereabouts, and they generally
confirmed the same. Id. Al-Asbahi responded by asking Martello
whether he should continue to “show up at rotation if [he] could no

15

There appears to be some confusion between Martello and AlAsbahi about the timing of the conferences. Martello states that he
started formulary late, at 1:40, so he doubts that Al-Asbahi saw a
shut door (dkt. no. 49-1 at 299); however, formulary started at
12:30. Either Martello mixed up the class names or he mixed up the
class times.

16

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
longer successfully complete it,” to which Martello did not respond.
Id.
Al-Asbahi

nevertheless

reported

for

the

following

day’s

rotation, after which he asked Martello “if he needed to discuss
anything with him.” Id. Martello stated he had nothing to say and
that they “were moving on.” Id. According to Al-Asbahi, he completed
the

remainder

of

the

rotation

without

any

written

or

verbal

indication from Martello that he was “regressing” (dkt. no. 55-3 at
20).
Following the rotation’s conclusion, Martello submitted his
final evaluation on Al-Asbahi (dkt. no. 49-1 at 286). Although
Martello increased his ratings on the competencies of “Pharmacy
Knowledge” and “Review Medication Orders” to “3", Martello still
rated

Al-Asbahi

as

“2"

in

“Collecting

Patient

Data,”

and

additionally lowered his rating in “Professionalism” to a “2", down
from a rating of “3" at the midpoint. Id. Specifically regarding the
“Professionalism”
meetings

and

the

competency,
fact

that

Martello
he

did

referenced
not

believe

the

missed

Al-Asbahi’s

explanation.16

16

Martello later provided that an additional reason for the low
grade was that he perceived Al-Asbahi as too often blaming his
classmate, Eric Likar, for his issues (dkt. no. 51-1 at 81-87).

17

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
As for the “Collecting Patient Data” competency, Martello
indicated that, although Al-Asbahi had “made some improvements,”
“his performance in this area is still inconsistent and below what
would be expected at this point in his training.” Id. at 290.
Specifically, Martello recalled instances “even in the second half
of the rotation where Basil ha[d] not know[n] pieces of information
relating to patients he was assigned to follow.”17 Id.
On August 1, 2014, immediately after receiving his final
evaluation, Al-Asbahi wrote to defendant, Dr. Terrance Schwinghammer
(“Schwinghammer”), Chair of the Department of Clinical Pharmacy at
the SOP, requesting that, pursuant to the Policy,18 he mediate the
grade dispute. Id. at 292. Al-Asbahi’s letter presented his overview
of the situation, as well as his arguments as to why the ratings in
the relevant competencies should be changed. Id. at 292-93. By email

17

Much of Al-Asbahi’s argument about his grade in Martello’s
rotation centers on his claim that he was not dishonest about
missing the conferences. Nonetheless, assuming that he could have
vindicated himself in the “Professionalism” competency and had his
score changed to a “3", his dismissal still would have been
justified because of his “2" in “Collecting Patient Data.”
18

Chapter 1, Section 6.2 of the Policy, “Appeal of a Grade, a
Final Grade, or Exclusion from the Course,” provides that, within
ten working days of receiving a grade, a student may appeal it to
the department Chair, who “will attempt to mediate the dispute
between the student and the instructor(s) responsible for the
penalty.” Dkt. no. 49-1 at 70.

18

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
dated August 5, 2014, Schwinghammer agreed to meet with Al-Asbahi
the following day, explained to him the mediator’s role, and
informed him that, if the mediation was unsuccessful, he could
direct

a

written

appeal

to

the

Committee

on

Academic

and

Professional Integrity (“Integrity Committee”) (dkt. no. 53 at 111).
Approximately two hours later, Schwinghammer again emailed AlAsbahi, informing him that he was “incorrect in stating that any
further appeal would go to the [Integrity] Committee,” but rather,
if he was “unable to resolve the dispute, the matter [would] go
immediately to Dean Chase.”19 Id.
Prior to meeting with Al-Asbahi, Schwinghammer reviewed in
detail

Martello’s

midpoint

and

final

evaluations,

as

well

as

correspondence from Maynor and Al-Asbahi’s written appeal (dkt. no.
49-1 at 303). In addition, he met with Martello, who explained his
reasons

for

warranted,

the
and

competency
stated

that

scores,

confirmed

Al-Asbahi

19

was

not

that

they

being

were

treated

In his deposition, Schwinghammer stated that it was Euler who
directed him to bypass any Committee involvement and direct any
appeal to Dean Chase (dkt. no. 51-2 at 19). Euler admitted to this
directive during her deposition, testifying that she did so because
the Committee did not have final decision making authority and could
only present facts to the Dean (dkt. no. 51-3 at 26-27). Therefore,
Euler felt that forcing Al-Asbahi to go through the process again
with the Committee, rather than simply going directly to Dean Chase,
would be painful and a waste of time. Id. at 27.

19

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
differently than any other student. Id. Finally, Martello told
Schwinghammer that he did not intend to change any of the scores in
the final evaluation (dkt. no. 55-3 at 26).
On August 6, 2014, Schwinghammer met with Al-Asbahi to hear his
verbal

appeal

and

apprise

him

of

his

meeting

with

Martello,

ultimately informing him that, because he was only authorized to
mediate the issue, he could not force Martello to change his
evaluation

(dkt.

no.

49-1

at

303).

Following

the

meeting,

Schwinghammer wrote an email to Euler, copying Maynor and Dean
Chase, in which he reviewed his discussions with Martello and AlAsbahi. Id. Al-Asbahi also mailed a copy of all his correspondence
with Schwinghammer to Dean Chase later that same afternoon. Id. at
305-07. Thus, she was fully apprised of Al-Asbahi’s arguments
concerning his belief that the evaluation was wrong and why she
should change his grade.
By letter dated August 7, 2016, Dean Chase informed Al-Asbahi
that she was dismissing him from the Program for failing to comply
with the remediation plan requirements. Id. at 309. Specifically,
she pointed to his failure to receive a passing level in two
competencies in Martello’s rotation, the same rotation he had

20

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
previously failed.20 Finally, she informed Al-Asbahi that he could
appeal her dismissal decision to the Chancellor of Health Sciences,
defendant Dr. Christopher Colenda (“Colenda”), within thirty days.
On August 10, 2014, Al-Asbahi responded to Dean Chase’s email,
stating

that

entails.”

“[w]ithout

Id.

at

311.

reading
He

your

letter,

reiterated

his

I

know

belief

what
that

it
his

reinstatement was a farce, and that the SOP had treated him
unfairly. Id. Without mentioning an appeal of either his grade or
his dismissal, he told her that, “My transition to another pharmacy
school

as

soon

as

possible,

I

believe

would

be

in

both

our

interests.” Id.
On September 4, 2014, Al-Asbahi wrote a lengthy letter to
Colenda, recounting the events to that point, outlining “all of
[his] concerns,” and making specific references to what he believed
were Dean Chase’s violations of the Policy (dkt. no. 53 at 35, 11316). In particular, he argued that Dean Chase had dismissed him from

20

This is clearly a misstatement by Dean Chase. Although he had
failed as a result of his removal, that grade was overturned and
replaced with a grade of “Incomplete.” Of course, Lowther’s
criticisms of Al-Asbahi’s actual deficiencies were never disputed
or found to be inaccurate; rather, Butcher found that Lowther and
the SOP had not followed the proper procedures or communicated
sufficiently with Al-Asbahi about his deficiencies. Nonetheless,
Lowther’s actual criticisms and concerns have never been
invalidated.

21

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
the SOP without first giving him a hearing with the Committee. Id.
at 115. Based on those reasons, he stated that he was “entitled to
a passing grade in his most recent rotation, and to reinstatement.”
Id.
He also stated that he no longer wished to re-enroll, and
requested

that

the

SOP

“facilitate

[his]

transfer

to

another

institution.” Id. To that end, he asked that the SOP: (1) change his
grade in Lowther’s rotation to an “I”; (2) remove his Fall 2013
Elective Rotation from his transcript because he was prevented from
attending it when he was removed from Lowther’s rotation; (3) update
his transcript to reflect that he passed “Pharmocokinetics - PHAR
741" in the Spring of 2014; (4) change his grade in Martello’s
rotation to a “P”; and (5) issue a letter of good standing to any
institution to which he may transfer. Id.
Colenda, at multiple times during his deposition, indicated
that he construed Al-Asbahi’s letter not to be a formal appeal of
his grade or dismissal, but rather, it was simply a request to alter
his transcript to what he felt he deserved (dkt. no. 51-5 at 30-31,
32,34, 35-36, 37, 41). In support, he pointed to Al-Asbahi’s desire
not to remain at the SOP, but to move on to another school. Id. at
31, 36, 37. Because he believed this to be a technical request to

22

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
alter a transcript, Colenda referred the letter back to Dean Chase’s
office for direction on how to address the requests from a technical
standpoint and in keeping with the regulations of the Office of the
Registrar. Id. at 31-51. Dean Chase’s office drafted a letter
outlining proposed responses to what they also construed as requests
to alter a transcript, which Colenda signed and sent to Al-Asbahi
on September 30, 2014 (dkt. no. 49-2 at 28). The letter denied all
five of Al-Asbahi’s requests and closed by stating that Colenda’s
decision was final. Id.
II. PROCEDURAL BACKGROUND
Al-Asbahi filed suit in this Court on August 24, 2015, naming
as defendants the West Virginia University Board of Governors (“WVU
Board”) and the SOP, as well as Scharman, Schwinghammer, Martello,
Chase, Maynor, Euler, Colenda, and Lowther in their individual and
official capacities. His complaint asserts seven causes of action:
•

Count I:

•

Count II:

•
•

Count III:
Count IV:

•
•
•

Count V:
Count VI:
Count VII:

“Violation of Substantive Due Process” under 42
U.S.C. § 1983 and the Fourteenth Amendment
“Violation of Procedural Due Process” under 42
U.S.C. § 1983 and the Fourteenth Amendment
“Violation of Civil Rights, 42 U.S.C. § 1981"
“Violation of Civil Rights, 42 U.S.C. §
1985(3)”
“Breach of Contract”
“Breach of Contract”
“Promissory Estoppel”

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
He seeks compensatory damages, punitive damages, damages for breach
of contract and promissory estoppel, as well as attorney’s fees and
costs. Further, he seeks a declaratory judgment that the defendants
violated his procedural and substantive due process rights, as well
as his rights under 42 U.S.C. §§ 1981 and 1985(3). Finally, he seeks
injunctive relief mandating that the SOP: (1) permit him to appeal
his failing grade in Martello’s Acute Care I rotation to the
Committee; (2) reinstate him and change his failing grade in
Lowther’s 2014 Acute Care I rotation to a passing grade; and (3)
immediately allow him to re-enroll, readmit him as a student in good
standing, and allow him to complete his final year in the Program.
Following discovery, both parties moved for summary judgment.
Al-Asbahi has moved for partial summary judgment on Counts II and
V of his complaint (dkt. no. 52); the defendants collectively have
sought summary judgment on all claims against them (dkt. no. 49).
The motions are fully briefed and ripe for review.
III. LEGAL STANDARD
Summary
documents,

judgment

is

electronically

declarations,

stipulations

appropriate

where

the

stored

information,

.

,

.

.

admissions,

“depositions,
affidavits

or

interrogatory

answers, or other materials” establish that “there is no genuine

24

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed R. Civ. P. 56(a), (c)(1)(A). When
ruling on a motion for summary judgment, the Court reviews all the
evidence “in the light most favorable” to the nonmoving party.
Providence Square Assocs., L.L.C. v. G.D.F., Inc., 211 F.3d 846, 850
(4th Cir. 2000). The Court must avoid weighing the evidence or
determining

its

truth

and

limit

its

inquiry

solely

to

a

determination of whether genuine issues of triable fact exist
sufficient to prevent judgment as a matter of law.

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
The moving party bears the initial burden of informing the
Court

of

the

basis

for

the

motion

nonexistence of genuine issues of fact.

and

of

establishing

the

Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). Once the moving party has made the
necessary showing, the non-moving party “must set forth specific
facts showing that there is a genuine issue for trial.”

Anderson,

477 U.S. at 256 (internal quotation marks and citation omitted). The
“mere existence of a scintilla of evidence” favoring the non-moving
party will not prevent the entry of summary judgment; the evidence
must be such that a rational trier of fact could reasonably find for
the nonmoving party.

Id. at 248–52.

25

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
IV. DISCUSSION
Before taking up the substantive issues raised in the parties’
respective motions, the Court turns first to two preliminary issues
that cut across all of the claims in the complaint.
A.

Preliminary Issues
The parties dispute the following issues: (1) whether the SOP

is an entity that is capable of being sued; and (2) whether
sovereign immunity under the Eleventh Amendment removes the Court’s
subject matter jurisdiction to hear claims against the WVU Board or
the individual defendants in their official capacities.
1. The SOP’s Capacity to be Sued
Al-Asbahi has sued both the WVU Board and the SOP. The
defendants argue that the SOP is simply a school within the
University and therefore not an entity capable of being sued. AlAsbahi attempts to refute this notion by arguing that the SOP makes
decisions independently of the WVU Board and promulgates its own
policy. These facts, however true, are not dispositive of the issue.
West Virginia Code § 18-11-4, provides, in pertinent part, that,
“[i]n consultation with the president of the university, the board
of governors shall have authority to establish and maintain in the
university such colleges, schools, departments and divisions as from

26

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
time

to

time

may

be

expedient,

and

shall

provide

for

the

organization and management of the same.” The SOP is simply a
component of West Virginia University, organized and ultimately
managed by the WVU Board. Id. As such, a suit against the SOP is a
suit against the WVU Board, and the SOP cannot be subject to suit
as a separate entity. Al-Asbahi has cited no authority to the
contrary. Accordingly, the Court DISMISSES the SOP as a party to
this action, and further notes that, even were the SOP an entity
subject to suit, as is discussed below it would be immune from suit,
as is the WVU Board.
2. Sovereign Immunity
The defendants argue that the WVU Board and the defendants AlAsbahi has sued in their official capacity are immune from suit
under the Eleventh Amendment. Al-Asbahi contends that the Fourteenth
Amendment abrogates the Eleventh Amendment’s protection whenever a
state violates the rights conferred therein. Further, he argues
that, in any event, pursuant to the doctrine of Ex Parte Young, 209
U.S. 123 (1908), the Eleventh Amendment “is no obstacle to the
injunctive and declaratory relief and attorney’s fees sought against
the [WVU Board and SOP] in Counts I, II, III, and IV” (dkt. no. 56
at 14).

27

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
The Eleventh Amendment deprives federal courts of jurisdiction
to hear suits against states without their explicit consent.21 See
Seminole Tribe of Florida v. Florida, 517 U.S. 44, 54 (1996)
(dismissing case against state of Florida for lack of jurisdiction);
Jemsek v. Rhyne, 2016 WL 5940315, at *3 (4th Cir. 2016) (noting in
a § 1983 case that “[t]he Eleventh Amendment bars suits in federal
court by citizens against unconsenting states and state agencies”
(citing Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984))). “This jurisdictional bar applies regardless of the nature
of the relief sought.” Jemsek, 2016 WL 5940315, at *3 (quoting
Pennhurst, 465 U.S. at 100). Furthermore,

state officials sued in

their official capacities are afforded the same immunity. Id.
The Supreme Court of the United States, however, has held that
Ҥ 5 of the Fourteenth Amendment allowed Congress to abrogate the
immunity from suit guaranteed by [the Eleventh] Amendment.” Id. at
59 (citing Fitzpatrick v. Bitzer, 427 U.S. 445, 452–56 (1976)).
Importantly, the Fourteenth Amendment itself does not abrogate
sovereign immunity, but rather provides Congress with the power to

21

The West Virginia University and its Board are “arms and
alter egos of the state,” and are therefore entitled to the
protections of the Eleventh Amendment. See e.g., West Virginia
University Bd. of Governors ex rel. West Virginia University v.
Rodriguez, 543 F.Supp.2d 526, 535 (N.D.W.Va. 2008).

28

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
do so. Id. Even still, “Congress’ intent to abrogate the States’
immunity from suit must be obvious from ‘a clear legislative
statement.’” Id. (quoting Blatchford v. Native Village of Noatak,
501 U.S. 775, 779 (1991)). Courts have consistently held that the
language of 42 U.S.C. § 1983 evinces no such intent to abrogate.
See, e.g., In re Secretary of Dept. of Crime Control and Public
Safety, 7 F.3d 1140, 1149 (4th Cir. 1993) (“While Congress may
abrogate a State’s Eleventh Amendment immunity by express statutory
language, . . . it has long been settled that 42 U.S.C. § 1983 . .
. does not effect such an abrogation.”) (citing Quern v. Jordan, 440
U.S. 332, 342 (1979)).
Long ago, however, in Ex Parte Young, 209 U.S. 123 (1908), the
Supreme

Court

carved

out

an

exception

to

Eleventh

Amendment

immunity, under which “federal courts may exercise jurisdiction over
claims against state officials by persons at risk of or suffering
from violations by those officials of federally protected rights.
This carve out is triggered, if (1) the violation for which relief
is sought is an ongoing one, and (2) the relief sought is only
prospective.” Republic of Paraguay v. Allen, 134 F.3d 622, 627 (4th
Cir. 1998) (citing Ex Parte Young); see also Jemsek, 2106 WL
5940315,

at

3

(quoting

Paraguay).

29

Thus,

under

the

doctrine

AL-ASBAHI v. THE WVU BOARD OF GOVERNORS, ET AL.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
articulated in Ex Parte Young, “a federal court, consistent with the
Eleventh Amendment, may enjoin state officials to conform their
future conduct to the requirements of federal law.”22 Paraguay, 134
F.3d at 627 (quoting Quern v. Jordan, 440 U.S. 332, 337 (1979)).
Applicability of the doctrine requires the Court to “conduct
a straightforward inquiry into whether [the] complaint alleges an
ongoing

violation

of

federal

law

and

seeks

relief

properly

characterized as prospective.” Verizon Md., Inc. v. Pub. Serv.
Comm’n

of

Md.,

535

U.S.

635,

645

(2002)

(internal

quotation

omitted). Notably, the doctrine is a narrow one, specifically
limited to prospective relief, but “not permit[ting] judgments
against state officers declaring that they violated federal law in
the past . . . .” Jemsek, 2016 WL 5940315, at *3 (quoting P.R.
Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146,
(1993)).
Under the facts in this case, it is beyond argument that the
WVU Board is immune under the Eleventh Amendment from all of AlAsbahi’s claims, both legal and equitable. Therefore, because it

22

The Court questions, but need not decide, whether it
possesses the power to order any defendant no longer an employee of
the University to conform with the injunctive relief Al-Asbahi
seeks.

30

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
lacks subject matter jurisdiction to hear such claims, the Court
DISMISSES WITHOUT PREJUDICE Counts I, II, III, and IV against the
WVU Board.23 Further, the Ex parte Young exception does not apply to
the declaratory relief sought by Al-Asbahi against the defendants
he has sued in their official capacity. Thus, similarly lacking
jurisdiction to hear those claims, the Court DISMISSES those claims
WITHOUT PREJUDICE.24
Finally, Eleventh Amendment immunity extends to the state law
breach of contract and promissory estoppel claims pleaded by AlAsbahi in Counts V, VI, and VII. Recognizing the Court’s lack of
subject matter jurisdiction to hear those claims, see

Pennhurst,

465 U.S. at 105-06; Westinghouse Elec. Corp. v. West Virginia Dept.
of Highways, 845 F.2d 468, 469 (4th Cir. 1988), Al-Asbahi seeks
dismissal of those claims without prejudice (dkt. no. 32-33).

23

Notably, Al-Asbahi’s § 1983 claims also would fail against
the WVU Board because it is not a “person” under § 1983. See Will
v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); see also
Huang v. Board of Governors of University of North Carolina, 902
F.2d 1134, 1139, n. 6 (4th Cir. 1990).
24

Al-Asbahi does make claims for injunctive relief that,
pursuant to Ex Parte Young, could remain viable against the official
capacity defendants should he prevail on his claims, which are fully
discussed below.

31

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
The defendants, however, assert that Al-Asbahi will simply refile those claims in state court and, because sovereign immunity
also bars his claims in that forum, the Court should not provide
another opportunity for him to file such meritless claims at the
expense of the state (dkt. no. 60 at 15). Consequently, they ask the
Court to dismiss the state law claims with prejudice.
Notwithstanding defendants’ argument, inasmuch as the Eleventh
Amendment bars the Court from even hearing these claims, “the
dismissal . . . for lack of subject matter jurisdiction must be
without prejudice.” Patterson v. State Bureau of Investigation, 92
F. App’x 38, 39 (4th Cir. 2004)(citing Interstate Petroleum Corp.
v. Morgan, 249 F.3d 215, 219 (4th Cir. 2001) (en banc); see also
Barnett v. U.S. Atty. Gen., 2013 WL 1187142, at *1, n. 2 (N.D.W.Va.
2013); Fed.R.Civ.P. 41(b). Accordingly, the Court DISMISSES WITHOUT
PREJUDICE Counts V, VI, and VII of Al-Asbahi’s complaint.
B.

Due Process Claims
Al-Asbahi asserts two claims for violations of his due process

rights. One is substantive, the other procedural. The defendants
argue that Al-Asbahi has no property or liberty interest that would
afford him due process protections; moreover, assuming he had such
a protectable interest, they assert that they have afforded him all

32

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
the process to which he was due. Al-Asbahi on the other hand, argues
that he is entitled to judgment as a matter of law on his procedural
due process claim in Count II because the defendants failed to
provide him legally sufficient process.
1.

Property or Liberty Interest

Al-Asbahi is entitled to due process protections only if he can
establish that he possessed a “liberty” or “property” interest. See
Board of Curators of Univ. of Missouri v. Horowitz, 435 U.S. 78, 82
(1978). “To have a property interest subject to procedural [or
substantive] due process protection, an individual must be entitled
to a benefit created and defined by a source independent of the
Constitution, such as state law.” Huang, 902 F.2d at 1141 (citing
Board of Regents v. Roth, 408 U.S. 564, 577 (1972); Bradley v.
Colonial Mental Health & Retardation Servs. Bd., 856 F.2d 703, 707
(4th Cir. 1988)); see also Horowitz, 435 U.S. at 82 (noting that
“property interests are creatures of state law” which must be
recognized by the relevant state); Trotter v. Regents of University
of New Mexico, 219 F.3d 1179, 1184 (10th Cir. 2000) (same).
Almost forty years ago, the Supreme Court of Appeals of West
Virginia recognized that a student has “a sufficient property
interest in the continuation and completion of his medical education

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
to

warrant

the

imposition

of

minimal

procedural

due

process

protections.” Evans v. West Virginia Bd. of Regents, 271 S.E.2d 778,
780 (W.Va. 1980) (citing State ex rel. McLendon v. Morton, W.Va.,
249 S.E.2d 919 (W.Va. 1978);

North v. West Virginia Board of

Regents, 233 S.E.2d 411 (W.Va. 1977)). In North, the court reasoned
that the plaintiff’s “interest in obtaining a higher education with
its concomitant economic opportunities, coupled with the obvious
monetary expenditure in attaining such education, gives rise to a
sufficient property interest to require procedural due process on
a removal.” 233 S.E.2d at 415. Of course, that same reasoning
applies

across

any

discipline,

including

pharmacy

school.

Accordingly, it is beyond debate that Al-Asbahi possessed a property
interest25 in the “continuation and completion of his [pharmacy]
education” sufficient to trigger due process protections, both
substantive and procedural. Evans, 271 S.E.2d at 780.
2.

Count I - Violation of Substantive Due Process

In order to prevail on his substantive due process claim, AlAsbahi must “demonstrate (1) that [he] had property or a property
25

If Al-Asbahi could establish a liberty interest, that too
would trigger due process protections. The law is less settled in
this area, however, and, because the Court has determined that AlAsbahi has a sufficient property interest, it need not address
whether he also had a sufficient liberty interest.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
interest; (2) that the state deprived [him] of this property or
property interest; and (3) that the state’s action falls so far
beyond the outer limits of legitimate governmental action that no
process could cure the deficiency.” MLC Automotive, LLC v. Town of
Southern Pines, 532 F.3d 269, 281 (4th Cir. 2008) (quoting Sylvia
Dev. Corp. v. Calvert Cty., 48 F.3d 810, 827 (4th Cir. 1995)).
Because Al-Asbahi had a protectable property interest, and it is
indisputable that one or more of the defendants deprived him of that
right when the SOP dismissed him, the question thus is whether the
decision to dismiss him was “so far beyond the outer limits of
legitimate governmental action that no process could cure the
deficiency.” Id.
The defendants argue that the standard sets a “high bar” and
that, in order for Al-Asbahi to prevail, their actions must have
“shocked the conscience” (dkt. no. 50 at 21). Al-Asbahi contends
that the “shocks the conscience” standard is inappropriate here;
rather, “the relevant substantive due process standard is whether
Dr. Martello’s evaluation reflected professional judgment and was
not arbitrary and capricious” (dkt. no. 56 at 22).
Al-Asbahi expends significant effort criticizing Martello’s
grading decisions and evaluations in an attempt to underscore the

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
arbitrary and capricious nature of his evaluation. In this Court’s
view, however, Al-Asbahi’s focus is misplaced. His

interest in the

continuation and completion of his education was deprived only when
Dean Chase ultimately dismissed him from the Program. Indeed, AlAsbahi has not pointed to, nor can the Court find, any authority
establishing a protected property interest in his receiving a
particular grade in Martello’s rotation. See Smith v. Utah Valley
Univ, 97 F.Supp.3d 998, 1004 (S.D.Ind. 2015) (“But no court has
found that students have a property interest in receiving a specific
grade. To the contrary, courts have been extremely skeptical when
reviewing claims by students alleging that their property interest
in a certain grade has been denied.”) (collecting cases in support).
Martello’s grading judgments are not dispositive of Al-Asbahi’s
claim because he has no property interest in a particular grade.
Although Martello’s failing grade may have set the dismissal forces
in motion, Al-Asbahi’s interest was deprived only by the dismissal
itself. Accordingly, the proper focus of the inquiry is whether Dean
Chase’s

dismissal

sufficiently

complied

with

the

due

process

requirements under the totality of the circumstances in this case.
See Charleston v. Bd. of Trustees of Univ. of Illinois at Chicago,
741 F.3d 769, 772 (7th Cir. 2013) (noting that courts “must

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
determine what process is due under the circumstances”). Finally,
even if Martello’s grade was a decision requiring its own due
process considerations, Dean Chase reviewed Martello’s evaluations
and Al-Asbahi’s counter contentions prior to deciding to dismiss AlAsbahi.
The traditional standard for substantive due process violations
sets a high bar. See Sylvia, 48 F.3d at 827. Moreover, protections
under substantive due process are “far narrower [] than procedural;
it

is

an

absolute

check

on

certain

governmental

actions

notwithstanding ‘the fairness of the procedures used to implement
them.’” Id. (quoting Love v. Pepersack, 47 F.3d 120, 122 (4th Cir.
1995)). That is to say, the action complained of must be “so
arbitrary and irrational, so unjustified by any circumstance or
governmental interest, as to be literally incapable of avoidance by
any

pre-deprivation

procedural

protections

or

of

adequate

rectification by any post-deprivation state remedies.” Id. (quoting
Rucker v. Harford County, 946 F.2d 278, 281 (4th Cir. 1991), cert.
denied, 502 U.S. 1097 (1992)).26

26

See also Sung Park v. Indiana Univ. School of Dentistry, 692
F.3d 828, 832 (7th Cir. 2012). There, the Seventh Circuit noted the
highly limited instances and rights that implicated substantive due
process:
The list of such rights and interests is, however, a

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
When courts evaluate whether an executive action was fatally
arbitrary, “a threshold question[] [is] whether the challenged
conduct was so egregious, so outrageous, that it may fairly be said
to shock the contemporary conscience.” Hawkins v. Freeman, 195 F.3d
732, 738 (4th Cir. 1999); see also Bell v. Ohio State University,
351

F.3d

240,

250

(6th

Cir.

2003)

(“Interests

protected

by

substantive due process . . . include those protected by specific
constitutional guarantees, such as the Equal Protection Clause,
freedom from government actions that ‘shock the conscience,’ . . .
and certain interests that the Supreme Court has found so rooted in
the traditions and conscience of our people as to be fundamental.”).

short one, including things like the right to marry, the
right to have children, the right to marital privacy, the
right to contraception, and the right to bodily
integrity. Conspicuously missing on this list is the
right to follow any particular career. Indeed, no court
could recognize such a right without acting in the teeth
of the many cautions that the Supreme Court has given
against expanding the concept of substantive due process,
“because guideposts for responsible decisionmaking in
this unchartered area are scarce and open-ended.”
Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720
(1997) (finding that a dental student dismissed for academic
and misconduct reasons did not possess a right in her
continued education that implicated the substantive due
process clause); see also Charleston, 741 F.3d at 774 (noting
that, as to a student plaintiff’s claim of a fundamental right
in public higher education, “He has no such thing”).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
The undisputed facts of this case simply do not meet such a
stringent

standard.

Property

interest

deprivations

based

on

educational decisions are not of the type that are literally
incapable of avoidance by any procedural protections. See Sung Park,
692 F.3d at 832. Furthermore, the decisions made by Dean Chase and
other administrators, or even the grading decisions by Martello or
any other professor, are not unjustified by any circumstance or
governmental

interest.

Not

only

do

these

defendants

have

an

interest, they owe a duty to the public to ensure that pharmacists
and other medical professionals are qualified, properly trained, and
of the highest caliber. See, e.g., Halpern v. Wake Forest Univ.
Health Sciences, 669 F.3d 454, 464 (4th Cir. 2012) (recognizing
“that

the

requirement

that

students

demonstrate

professional

behavior is an essential aspect of [the medical school’s] program”).
Accordingly, Al-Asbahi has not articulated a cognizable substantive
due process claim under the “shocks the conscience” standard.
The question remains whether, as Al-Asbahi contends, the
standard is lower in cases of educational decisions such as the one
sub judice. The answer is clearly no. In Regents of the University
of

Michigan

v.

Ewing,

474

U.S.

214,

225

(1985),

a

seminal

substantive due process case in the context of education, the

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Supreme Court of the United States found no violation of the
student’s rights where “the faculty’s decision [to dismiss him] was
made conscientiously and with careful deliberation, based on an
evaluation of the entirety of Ewing’s academic career.”27 Ewing
counseled that “courts review[ing] the substance of a genuinely
academic decision . . . should show great respect for the faculty’s
professional judgment.” Id. This is appropriate because faculty are
“uniquely

positioned

to

observe

[a

student’s]

judgment,

self-discipline, and ability to handle stress, and . . . thus
especially well situated to make the necessary subjective judgment
of [his] prospects for success in [his chosen] profession.” Id. at
228, n. 14; see also Horowitz, 435 U.S. at 89-90, 92 (noting that
procedural tools are not well tailored to the specialized decision
making and evaluation processes of professional educators).
Courts should disturb only those academic decisions that so
“substantial[ly]
demonstrate

that

depart[]
the

from

person

accepted

or

academic

committee

norms

responsible

as

did

to
not

actually exercise professional judgment.” Ewing, 474 U.S. at 225;

27

See also Rollins v. Board of Trustees of the University of
Alabama, 647 Fed.Appx. 924, 930-31 (11th Cir. 2016) (adopting
Ewing’s reasoning); Perez v. Texas A & M University at Corpus
Christi, 589 Fed.Appx. 244, 250 (5th Cir. 2014) (same).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
see also Huang, 902 F.2d at 1142. Even evidence that the decision
was “unwise or mistaken . . . cannot establish a substantive due
process claim.” Huang, 902 F.2d at 1142 (citing Bishop v. Wood, 426
U.S. 341, 350 (1976)).
Under the standard announced in Ewing, the determinative
question here is whether the decision to dismiss Al-Asbahi was made
conscientiously and with careful deliberation. 474 U.S. at 225; see
also Rollins v. Board of Trustees of the University of Alabama, 647
Fed.Appx. 924, 930-31 (11th Cir. 2016) (adopting Ewing standard and
referring to it as “careful and deliberate decision”). The evidence
established

that

Dean

Chase,

with

input

from

multiple

other

professional educators and practicing pharmacists, did not make a
decision that “ventured ‘beyond the pale of reasoned academic
decision-making.’” Huang, 902 F.2d at 1142 (quoting Ewing, 474 U.S.
at 227-28). Rather, her decision was based on data accumulated over
the “entirety of [Al-Asbahi’s] academic career.” Ewing, 474 U.S. at
225.
Al-Asbahi received three grades of “D” in his first three
semesters,

leading

first

to

probation

and

ultimately

to

the

Committee’s recommendation that he be dismissed from the Program.
After readmission, Al-Asbahi struggled to maintain the minimal GPA

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
standards established by the agreed to remediation plan, again
prompting the Committee to recommend his dismissal. At that time,
Dean Chase intervened and allowed him to remain in the Program.
Nonetheless, he continued to struggle and was removed during his
first Acute Care I rotation with Lowther. Although Vice President
Butcher reversed the grade in that rotation from an “F” to an “I,”
he did so based on predominantly procedural issues surrounding the
removal. None of Lowther’s many substantive criticisms of AlAsbahi’s performance were disproved; in point of fact, they were
supported in large part by the personal observations of Lowther’s
supervisor, Brian Hodges. This information surely informed Dean
Chase’s judgment. Yet again, during Al-Asbahi second Acute Care I
rotation,

Martello

documented

many

of

those

same

academic

deficiencies in both his midpoint and final evaluations.
Dean Chase was involved with Al-Asbahi throughout his academic
career at the SOP. She personally knew him and was familiar with
struggles, many of them self-admitted; indeed, she had rejected her
own Committee’s recommendations for his benefit on more than one
occasion. Based on the information available to Dean Chase during
the entirety of Al-Asbahi’s tenure at the SOP, her ultimate decision
was made conscientiously and with careful deliberation based on her

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
accumulated knowledge. Therefore, even under Ewing’s more permissive
standard,

Al-Asbahi’s

substantive

due

process

claim

fails.

Accordingly, the Court GRANTS the defendants’ motion for summary
judgment and DISMISSES Count I WITH PREJUDICE.
3.

Count II - Violation of Procedural Due Process

To succeed on his procedural due process claim, Al-Asbahi must:
(1) “that he had a constitutionally cognizable life, liberty, or
property interest”; (2) “that the deprivation of that interest was
caused by ‘some form of state action’”; and (3) “that the procedures
employed were constitutionally inadequate.” Sansotta v. Town of Nags
Head, 724 F.3d 533, 540 (4th Cir. 2013) (quoting

Iota Xi Chapter

Of Sigma Chi Fraternity v. Patterson, 566 F.3d 138, 145 (4th Cir.
2009)). Having concluded that Al-Asbahi possessed a property right
to the continuation and completion of his education, which was
deprived when Dean Chase dismissed him from the Program,
must

determine

whether

the

process

afforded

the Court

Al-Asbahi

by

the

defendants was “constitutionally adequate.” Id.; Goss v. Lopez, 419
U.S. 565, 577 (“Once it is determined that due process applies, the
question remains what process is due.”).28

28

The parties spend a significant amount of time in their
briefs parsing through the Policy and the process it provides. Such

43

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
The fundamental requirements of procedural due process are the
right to notice and the right to be heard. Mathews v. Eldridge, 424
U.S. 319, 348 (1976). Defining procedural due process requirements,
however, must remain “flexible and [it] calls for such procedural
protections as the particular situation demands.” Morrisey v.
Brewer, 408 U.S. 471, 481 (1972). As a general principle, three
factors guide what process is due in any

particular situation: (1)

“the degree of potential deprivation that may be created by a
particular decision”; (2) “the fairness and reliability of the
existing pre[deprivation] procedures, and the probable value, if
any,

of

additional

procedural

safeguards”;

and

(3)

the

administrative burden and other societal costs . . . associated with

an argument is irrelevant to Al-Asbahi’s claims, however, because
a state policy such as the one here, even assuming it is a contract,
does not define the process that is due. What satisfies due process
in a Fourteenth Amendment or § 1983 context is exclusively defined
by the Constitution and relevant judicial precedent. See, e.g.,
Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 772 (2005)
(Souter, J., concurring) (“[C]ontractually-guaranteed university
process is not protected by the federal Constitution. Doing so would
supply ‘federal process as a substitute simply for state
process.’”); Charleston, 741 F.3d at 773–74 (“We have rejected
similar claims of an ‘interest in contractually-guaranteed
university process’ many times, but we will be clear once more: a
plaintiff does not have a federal constitutional right to
state-mandated
process.”
(internal
citations
omitted)).
Consequently, any reliance on or reference to the process due under
the Policy by the parties is wholly misplaced.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
requiring, as a matter of constitutional right, an evidentiary
hearing upon demand in all cases prior to the [deprivation].”
Mathews, 424 U.S. at 341-47.
Two years after it decided Mathews, in Board of Curators of
Univ. of Missouri v. Horowitz, 435 U.S. 78 (1978), the Supreme Court
established the standard applicable in the specific context of
academic dismissals. In Horowitz, the University of Missouri Kansas
City Medical School had dismissed a medical student, Charlotte
Horowitz, for academic reasons during her final year of study. Id.
at 80-82. At multiple times prior to her dismissal, the faculty had
informed

Horowitz

of

their

dissatisfaction

with

her

clinical

progress. Id. In addition, the faculty had warned her that these
problems put her continuation in the medical program at risk. Id.
During the course of her years at the school, she had experienced
a multitude of academic issues, including, among others, struggling
through

rotations,

being

placed

on

probation,

and

receiving

unsatisfactory reviews from her instructors. Id. She had clear
notice of her shortcomings from interactions with dissatisfied
faculty and administrators, including, at various stages, harsh
commentary on her academic abilities. Id.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Horowitz

also

had

been

periodically

reviewed

by

the

University’s Council on Evaluation during her time in the program.
Following her first-year struggles, the Council had recommended that
the school allow her to “advance[] to her second and final year on
a probationary basis.” Id. at 81. Midway into her final year, the
Council again met to discuss faculty dissatisfaction with her
progress,

including

“unsatisfactory”

a

from

rating

her

of

faculty

her

clinical

advisor.

Id.

skills
The

as

Council

recommended that Horowitz not be allowed to graduate in June and,
barring “radical improvement,” that the school should dismiss her
from the program. Id.
The school allowed Horowitz to “take a set of oral and
practical examinations as an ‘appeal’ of the decision not to permit
her to graduate.” Id. The physicians proctoring her tests were
split:

Two

recommended

she

graduate

on

time;

two

recommended

immediate dismissal; and three recommended continued probationary
status pending further evaluations. Id. The Council ultimately
reaffirmed its original recommendation, postponing her graduation
and

conditioning

her

further

participation

“radical improvement.” Id.

46

in

the

program

on

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
The Council met again in mid-May to determine whether Horowitz
had improved sufficiently to warrant her continuation in the program
past the end of that semester. After noting a “low-satisfactory”
rating for a recent surgery rotation, the Council unanimously
recommended that, “barring receipt of any reports that Miss Horowitz
has improved radically, [she] not be allowed to re-enroll in the .
. . School of Medicine.” Id. at 82. The Council awaited her final
rotation reports before making its recommendation official. Id.
After those reports showed no such improvement, and even
included another negative report on one of the rotations, the
Council

unanimously

reaffirmed

its

recommendation

to

dismiss

Horowitz. Id. at 81-82. The University’s Coordinating Committee and
Dean approved the recommendation and notified Horowitz of her
dismissal from the program. Id. at 82. She then submitted a written
appeal to the Provost for Health Sciences, who upheld the dismissal
after

reviewing

the

record

gathered

during

the

earlier

proceedings.29

29

It bears noting that Horowitz never made a personal
appearance before the Council, the Coordinating Committee, the Dean,
or the Provost. She presented her contentions as to why her
dismissal was improper solely in writing in her letter to the
Provost.

47

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Of significance to the analysis of the arguments advanced by
Al-Asbahi, in its analysis in Horowitz, the Supreme Court explained
that, when analyzing academic decisions, courts should refrain from
imposing formal procedural requirements because the academic process
itself provides sufficient procedural protections. Id. at 85; see
also Ezekwo v. New York City Health & Hospitals Corp., 940 F.2d 775,
785 (2d Cir. 1991) (describing the principle announced in Horowitz).
It

also

stressed

heavily

that

courts

should

give

significant

deference to academic decisions, reasoning that “[c]ourts are
particularly ill-equipped to evaluate academic performance” because
they require “an expert evaluation of cumulative information and
[are] not readily adapted to the procedural tools of judicial or
administrative decisionmaking.” Id. at 89, 92 (emphasis added).
Moreover, “[a] graduate or professional school is, after all, the
best judge of its students' academic performance and their ability
to master the required curriculum.” Id. at 85 n. 2.30

30

See also Manickavasagar v. Va. Commonwealth Univ. School of
Medicine, 667 F.Supp.2d 635, 642–43 (E.D.Va. 2009) (noting that this
is “especially” true for academic decisions in “‘the health care
field, [where] the conferral of a degree places the school’s
imprimatur upon the student as qualified to pursue his chosen
profession,’ a profession whose practitioners are entrusted with
life and death decisions.” (quoting Kaltenberger v. Ohio College
of Podiatric Med., 162 F.3d 432, 437 (6th Cir. 1998)).

48

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
The Court distinguished the quantum of process due under
disciplinary decisions from that due under academic decisions,
“which may call for hearings in connection with the former but not
the latter.” Id. at 85-87. It recognized that, in its prior decision
in Goss v. Lopez, 419 U.S. 565 (1975), it had held that a dismissal
for disciplinary reasons required “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.” Horowitz, 435 U.S.
at 85. It pointed out, however, that even that due process standard
did not entitle a student to a formal hearing. Id. at 86. Instead,
due process in the disciplinary dismissal context requires only “an
‘informal give-and-take’ between the student and the administrative
body dismissing him that would, at least, give the student ‘the
opportunity to characterize his conduct and put it in what he deems
the proper context.’” Id. (quoting Goss, 419 U.S. at 584).
In contrast, when a student is dismissed for academic reasons
no hearing is required — formal or otherwise. Id. at 90. The Court
distinguished the “sufficient resemblance to traditional judicial

49

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MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
and administrative factfinding” present in disciplinary proceedings
from the less adversarial nature of academic proceedings:
The educational process is not by nature adversary;
instead it centers around a continuing relationship
between faculty and students, one in which the teacher
must occupy many roles—educator, adviser, friend, and, at
times, parent-substitute. This is especially true as one
advances through the varying regimes of the educational
system,
and
the
instruction
becomes
both
more
individualized and more specialized. In Goss, this Court
concluded that the value of some form of hearing in a
disciplinary context outweighs any resulting harm to the
academic environment. Influencing this conclusion was
clearly the belief that disciplinary proceedings, in
which the teacher must decide whether to punish a student
for
disruptive
or
insubordinate
behavior,
may
automatically bring an adversary flavor to the normal
student-teacher relationship. The same conclusion does
not follow in the academic context. We decline to further
enlarge the judicial presence in the academic community
and thereby risk deterioration of many beneficial aspects
of the faculty-student relationship.
Id. at 88-89, 90 (internal quotation and citation omitted).31
The Court confirmed in Horowitz the substantial deference
afforded to academic decisions, and further “recognize[d], as did
the Massachusetts Supreme Judicial Court over 60 years ago, that a

31

The Court also noted that, prior to the Eight Circuit’s
decision on appeal in Horowitz, state courts and “the Courts of
Appeals were [] unanimous in concluding that dismissals for academic
(as opposed to disciplinary) cause do not necessitate a hearing
before the school’s decisionmaking body.” 435 U.S. at 87.
Consequently, it was reluctant to upset such consistent precedent.
Id. at 88.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
hearing may be ‘useless or harmful in finding out the truth as to
scholarship.’”

at

Id.

90

(quoting

Barnard

v.

Inhabitants

of

Shelburne, 102 N.E. 1095, 1097 (Mass. 1913)). Hence, it held that
no hearing is required in academic dismissal cases.
In accord with those principles, the Court then analyzed
whether the school had complied with its due process requirements
before dismissing Horowitz. It first found that “[t]he school [had]
fully informed [Horowitz] of the faculty’s dissatisfaction with her
clinical

progress

and

the

danger

that

this

posed

to

timely

graduation and continued enrollment.” Id. at 85. Next, it found that
“[t]he ultimate decision to dismiss [Horowitz] was careful and
deliberate.” Id. Based on those two findings, the Court held that
the process provided to Horowitz by the school had was “sufficient
under the Due Process Clause of the Fourteenth Amendment.” Id.
Indeed, based on the totality of the facts of her case, Horowitz
“[had] been awarded at least as much due process as the Fourteenth
Amendment requires.” Id. Significantly, the majority in Horowitz
went

even

further,

observing

“that

the

school

went

beyond

[constitutionally required] procedural due process.” Id. (brackets
in original).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
Thus, Horowitz announced the boundaries of the procedural
process due in academic dismissal cases. First, the student must
have notice of the faculty’s dissatisfaction and potential risk of
his

dismissal. Next, the final dismissal decision must be made

carefully and deliberately. Id. at 85. Horowitz remains the standard
in cases involving academic dismissals, and has been explicitly
recognized by numerous courts of appeals.32
Applying the standard from Horowitz to the facts in the instant
case, it is clear that no violation of Al-Asbahi’s due process
rights occurred. Prior to his ultimate dismissal, Al-Asbahi was
clearly on notice not only of the dissatisfaction of the faculty and
administration with his academic performance, but also of the
potential risk of dismissal. He had received three grades of “D” in
his first three semesters, which initially resulted in his being
placed

on

probation

and

his

first

dismissal.

Based

on

its

dissatisfaction with his progress to that point, the Committee
informed

him

that

he

could

only

32

be

readmitted

subject

to

a

See, e.g., Rollins, 647 Fed. Appx. at 929 (11th Cir. 2015);
Dean v. Univ. at Buffalo School of Medicine and Biomedical Sciences,
804 F.3d 178, 191 (2nd Cir. 2015); Hlavacek v. Boyle, 665 F.3d 823,
826 (7th Cir. 2011); Monroe v. Arkansas State Univ., 495 F.3d 591,
595 (8th Cir. 2007); Ku v. State of Tennessee, 322 F.3d 431, 436-37
(6th Cir. 2003); Brown v. Li, 308 F.3d 939, 954–55 (9th Cir. 2002);
Clark v. Whiting, 607 F.2d 634, 643–44 (4th Cir. 1979).

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
remediation plan. In the letter Dean Chase wrote readmitting AlAsbahi, she explicitly warned him that he was in “an extremely
tenuous position,” as this was “one final opportunity to demonstrate
[he] should receive the Pharm D. degree from WVU” (dkt. no. 49-1 at
136).33
After Al-Asbahi re-enrolled, he was again admonished by the
Committee when his semester GPA dropped below 2.5. This resulted in
additional remediation requirements and a warning that he faced
dismissal should he fail to meet them. He certainly knew of
Lowther’s and Hodges’s dissatisfaction, which had led to his removal
from his first Acute Care I rotation.34 He also knew of the
Committee’s concerns when they required that his preceptors be
faculty members, and that the SOP inform those preceptors that he
needed close supervision. Finally, from his multiple discussions
with Martello, the midpoint evaluation, and the final evaluation,

33

Put in context, this “one final opportunity” came only three
semesters into an eight semester program.
34

Although Butcher’s reversal of the Lowther rotation grade
noted that Al-Asbahi had not received adequate written feedback
under the Policy, he acknowledges in his deposition that Lowther was
very critical of him at various times. See, e.g., Dkt. no. 49-1 at
30-33. Moreover, he certainly should have been fully aware of
Lowther’s and Hodges’s perceptions following the academic review of
his rotation.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
he

was

aware

peradventure

of

that

Martello’s
Al-Asbahi

dissatisfaction.
was

on

notice

of

It
the

is

beyond

faculty’s

dissatisfaction with his academic progress, and the accompanying
risk of his dismissal.
It is also indisputable that Dean Chase’s decision to dismiss
Al-Asbahi was made carefully and deliberately. As chronicled above,
Dean Chase was intimately familiar with the details of Al-Asbahi’s
case, having been personally involved in his history at the SOP and
the several attempts to resolve his academic problems. She was
involved in each of his struggles over the entirety of his time at
the SOP. Indeed, to Dean Chase, Al-Asbahi was no faceless name and
number on a piece of paper. She had corresponded and met with him
on several occasions, and once had even met with him and his parents
to discus their concerns.
Furthermore, as noted earlier, Dean Chase had evaluated AlAsbahi’s situation at various stages of his studies, including more
than once rejecting her own Committee’s recommendation to dismiss
him. Her decisions were informed by a significant accumulation of
facts, gathered from multiple professional educators, practicing
pharmacists, administrators, and the Committee over the course of
Al-Asbahi’s entire enrollment. Martello’s grade was but one piece

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
of the puzzle, albeit the final piece.35 See Horowitz, 435 U.S. at
90 (“[T]he determination whether to dismiss a student for academic
reasons requires an expert evaluation of cumulative information.”
(emphasis added)); Bell v. Ohio State University, 351 F.3d 240, 252
(6th Cir. 2003) (recognizing that “academic judgments] [are] not
beyond the pale of reasoned academic decision-making when viewed
against the background of [the student’s] entire career” (quoting
Ewing, 474 U.S. at 227-28)).
Finally, both during and after his rotation, Martello informed
Dean Chase of Al-Asbahi’s performance and deficiencies. Not only was
she able to thoroughly review Martello’s evaluations, but she also
had the opportunity to hear Al-Asbahi’s side of the story when he
sent her the detailed outline he had presented to Schwinghammer
prior to the mediation. Thus, although she did not conduct a formal

35

Although Martello explained his reasons for the grade he gave
Al-Asbahi in “Professionalism,” Al-Asbahi would have Dean Chase, and
ultimately the Court, overrule Martello’s evaluation and reasons for
the grade in that competency. However, Martello’s reasons for
assigning the grade, as well as Dean Chase’s affirmation, are the
very kind of professional judgments that the Supreme Court has
warned judges to avoid. See Ewing, 474 U.S. at 225 (“Considerations
of profound importance counsel restrained judicial review of the
substance of academic decisions.”). Moreover, even setting all of
that aside, Al-Asbahi still failed a second competency, which would
have resulted in the same outcome.

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
appeal36 of Martello’s grade, Dean Chase was fully apprised of AlAsbahi’s arguments as to why Martello’s evaluation was wrong and why
she should change his grade, all before making her ultimate decision
to dismiss to dismiss him from the Program. Dean Chase thus made her
informed

decision

to

dismiss

Al-Asbahi

with

due

care

and

deliberation.
Consequently, for the reasons discussed, the Court concludes
that the defendants provided Al-Asbahi all the process he was due
under the circumstances of this case, and DISMISSES Count II WITH
PREJUDICE.
C.

Counts III and IV - Violation of Civil Rights Under 42 U.S.C.
§§ 1981 and 1985(3)
Al-Asbahi’s § 1981 and § 1985(3) claims also fail. Even taking

the facts in the light most favorable to him, Al-Asbahi has failed
to provide evidence “such that a rational trier of fact could
reasonably find for [him].” See Anderson, 477 U.S. at 256. Indeed,
Al-Asbahi has provided no evidence sufficient to suggest that the

36

Of course, Al-Asbahi had no constitutional due process right
to an appeal. See, e.g., Flaim v. Medical College of Ohio, 418 F.3d
629, 636 (6th Cir. 2005) (noting in a disciplinary expulsion case
with its higher due process requirements that “due process generally
does not require an appeal from a school’s decision that was reached
through constitutional procedures”).

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1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
SOP’s actions were based in whole or in part on his race, ethnicity,
or national origin as required under both statutes.
In order to succeed on his § 1981 claim, Al-Asbahi must
establish the following: (1) that he is a member of a racial
minority; (2) that one or more of the defendants intentionally
discriminated against him on the basis of his race; and, (3) that
the discrimination related to one or more of the activities set
forth

in

§

1981,

such

as

his

right

to

“make

and

enforce

contracts.”37 42 U.S.C. § 1981(a).
As to his § 1985(3) claim, Al-Asbahi “must prove: (1) a
conspiracy of two or more persons, (2) who are motivated by a
specific class-based, invidiously discriminatory animus to (3)
deprive the plaintiff of the equal enjoyment of rights secured by
the law to all, (4) and which results in injury to the plaintiff as
(5) a consequence of an overt act committed by the defendants in
connection with the conspiracy.” Simmons v. Poe, 47 F.3d 1370, 1376
(4th Cir. 1995). Moreover, he must establish a “‘meeting of the
minds’ by defendants to violate [his] constitutional rights.” Id.
at 1377 (noting the high standard to survive summary judgment and

37

Solely for the purposes of its discussion here, the Court
assumes without deciding that the Policy was a contract.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
consistent rejection of § 1985 claims “in the absence of concrete
supporting facts”). Accordingly, a core requirement for both claims
is

that

the

defendants

must

have

engaged

in

intentional

discriminatory actions based on an animus towards Al-Asbahi because
of his race, ethnicity, or national origin.
Here, the entirety of Al-Asbahi’s evidence of racial animus
rests on two slender reeds: First, that Lowther refused his request
for time off during his rotation to attend Mosque; and, second, that
an email from Martello to Euler used the words “Potato Party” in the
subject line. These bits of alleged circumstantial evidence hardly
suffice to survive summary judgment. In the first place, Lowther’s
denial of Al-Asbahi’s request for time off to attend Mosque did not,
standing alone, interfere with his right to contract. Furthermore,
even assuming that Al-Asbahi did ask for time off explicitly to
attend Mosque, which Lowther vehemently denies, his allegation that
Lowther’s criticisms must therefore have been based on racial animus
is speculative and conclusory. See Bell, 351 F.3d at 252–53 (noting
that such “[m]ere conclusory and unsupported allegations, rooted in
speculation,” cannot survive summary judgment). Further diluting any
connection is the fact that, as the Court has previously noted,
Lowther did not make the decision to remove Al-Asbahi from his

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
rotation. Rather, it was Hodges who, based on his own observations,
informed the SOP of the need to remove Al-Asbahi from the rotation.
Al-Asbahi’s second piece of evidence, Martello’s use of the
words “Potato Party” in the subject line of an email to Euler, is
even less supportive. Al-Asbahi argues that the use of such a
description in the subject line is disparaging and pejorative, and
justifies an inference of prejudice (dkt. no. 56 at 31). Yet,
nowhere in the record does anyone present so much as a suggestion
as

to

how

such

wording

may

be

related

to

racial

animus.38

Consequently, this is far too slender a reed on which to support his
claim.
Even absent direct evidence, Al-Asbahi could proceed with
circumstantial evidence under the McDonnell Douglas burden-shifting
framework. See Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th Cir.
2013) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973)). To proceed under that framework, he must make a prima facie
showing that: (1) “[he] is a member of a protected class;” (2) [he]
suffered an adverse action at the hands of the defendants in [his]

38

At various times during witness depositions, counsel for AlAsbahi suggests that this may be some sort of reference to being a
“couch potato,” suggesting that the defendants might have thought
Al-Asbahi was lazy (dkt. no. 51-3 at 16-17). Even if true, this
cannot support a claim specifically premised on racial animus.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
pursuit of [his] education; (3) [he] was qualified to continue in
[his]

pursuit

of

[his]

education;

and

(4)

[he]

was

treated

differently from similarly situated students who are not members of
the protected class.” Bell, 351 F.3d at 253.
Based on the evidence of record, Al-Asbahi can satisfy the
first two elements but not the final two, that he was qualified to
continue in the Program, and that he was treated differently from
similarly situated students who are not members of the protected
class. Id. The record establishes that he was not qualified to
continue in the SOP. Despite multiple opportunities and reprieves,
he repeatedly failed to meet the necessary academic requirements.
See Bell, 351 F.3d at 254 (finding that a plaintiff with a similar
academic track-record could not establish § 1981 claim); see also
Middlebrooks v. University of Maryland, 1999 WL 7860, at *5 (4th
Cir. 1999) (affirming summary judgment where plaintiff “[did] not
suggest that she had mastered the material on which she was tested;
nor does she offer testimony from others to that effect”).
Furthermore, even if Al-Asbahi could establish that he was
qualified to continue in the Program, he has failed to establish
that he was “treated differently from similarly situated students
who are not members of the protected class.” Bell, 351 F.3d at 253.

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
He argues that no other SOP student was dismissed in his or her
fourth year, with the lone exception of one student subsequently
readmitted subject to a remediation program (dkt. no. 56 at 31).
This, alone, however, is not a sufficiently specific comparison of
“similarly

situated”

students.

See,

e.g.,

Amini

v.

City

of

Minneapolis, 643 F.3d 1068, 1076 (8th Cir. 2011) (“At the pretext
stage, the test for determining whether employees are similarly
situated to a plaintiff is a rigorous one, requiring the plaintiff
to show that he and the other candidates are similarly situated in
all relevant respects.”) (internal quotations omitted).
Al-Asbahi has presented no evidence that another student was
situated similarly to him. That is, he has not pointed to a single
example of a student who was not a member of his protected class,
who had a similar multtude of academic difficulties, including a
prior dismissal, continuous probation, and numerous failures to
comply with a remediation plan, but who was nonetheless allowed to
continue in the Program. Accordingly, having failed to present a
prima facie case of discrimination, Al-Asbahi’s § 1981 claim in
Count III is DISMISSED WITH PREJUDICE .
Finally, regarding Al-Asbahi’s claim of conspiracy under §
1985(3) in Count IV, the record is devoid of any evidence that the

61

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MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
defendants conspired to violate Al-Asbahi’s rights. His response to
the motion for summary judgment rests entirely on an email, a
letter,

and

a

phone

call

between

Martello

and

Maynor.

These

communications, however, all concerned Al-Asbahi’s performance and
his grade — a subject Martello and Maynor were required to discuss
as part of their employment. There simply is not even a scintilla
of

evidence

that

the

two

had

a

“meeting

of

the

minds”

to

intentionally discriminate against Al-Asbahi, let alone to do so
based on racial animus.39 Consequently, inasmuch as Al-Asbahi has
failed to establish evidence of a conspiracy, the Court DISMISSES
WITH PREJUDICE his § 1985(3) claim in Count IV.
V. CONCLUSION
For the reasons discussed, the Court:
•

GRANTS the defendants’ motion for summary judgment (dkt. no.
49);

39

At various points, Al-Asbahi posits that the defendants
retaliated against him because of their anger at Vice President
Butcher overturning his first dismissal. Even if true, this reason,
no matter how improper, would not support a § 1985(3) claim premised
on racial animus. Moreover, the fact that Dean Chase continued to
make decisions rejecting her own Committee’s recommendations in
favor of Al-Asbahi flies in the face of such a claim.

62

AL-ASBAHI v. THE WVU BOARD OF GOVERNORS, ET AL.

1:15CV144

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT [DKT NO. 49] AND DENYING
PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT [DKT. NO. 52]
•

DENIES Al-Asbahi’s motion for partial summary judgment (dkt.
no. 52);

•

DISMISSES Counts I, II, III, and IV of the complaint WITHOUT
PREJUDICE as they apply to the WVU Board and the official
capacity defendants, but WITH PREJUDICE as they apply to the
individual capacity defendants; and

•

DISMISSES Counts V, VI, and VII of the complaint WITHOUT
PREJUDICE.
It is so ORDERED.
The Court DIRECTS the Clerk of Court to transmit copies of this

Memorandum Opinion and Order to counsel of record and to enter a
separate judgment order.
DATED: January 30, 2017.
/s/ Irene M. Keeley
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE

63