IN THE UNITED STATES COURT OF APPEALS

             FOR THE FIFTH CIRCUIT
                       _______________

                         m 02-10182
                       Summary Calendar
                       _______________




               SCHOPPA FAMILY, ETC., ET AL.,

                                            Plaintiffs,

                        S.E. PODUSLO,

                                            Plaintiff-Appellant,

                            VERSUS

                  JOEL KUPERSMITH, M.D.,
DEAN, TEXAS TECH UNIVERSITY HEALTH CENTER SCHOOL OF MEDICINE;
                RANDOLPH SCHIFFER, M.D.,
            CHAIRMAN, DEPARTMENT OF PSYCHIATRY,

                                            Defendants-Appellees.



                 _________________________

           Appeal from the United States District Court
               for the Northern District of Texas
                       m 5:01-CV-085-C
                _________________________


                       November 26, 2002
Before HIGGINBOTHAM, SMITH, and                            budget, and be given the title of Director of
  CLEMENT, Circuit Judges.                                 Basic Research in the Alzheimer’s Institute
                                                           (“Director of Research”). An October 18,
JERRY E. SMITH, Circuit Judge:*                            1989, letter from the Dean of the School of
                                                           Medicine3 offered Poduslo a tenured position
    Shirley Poduslo, a professor at the School             with a starting salary of $66,000, plus moving
of Medicine at Texas Tech University Health                expenses for personal items and professional
Sciences Center (“TTUHSC”), was removed                    equipment.
as Director of Basic Research in the Alzhei-
mer’s Institute, was denied access to the re-                  Poduslo accepted the position and was giv-
search laboratory and lost funding for lab-                en laboratory space, a supply budget, and the
oratory supplies and a research technician.                title of Director of Research. She kept per-
Along with more than 700 persons who had                   sonally-owned equipment and supplies of con-
provided their own or deceased family mem-                 siderable value in the laboratory. As Director
bers’ DNA samples and/or brains to the Alzhei-             of Research, she founded TTUHSC’s Alzhei-
mer’s DNA Bank that she ran, Poduslo sued,                 mer’s DNA Bank, a research repository of
in state court, Robert Schiffer, Chairman of               DNA samples and brains from thousands of
the Department of Neuropsychiatry, and Joel                Alzheimer’s victims. On January 28, 2000,
Kupersmith, Dean of the School of Medicine,                following a series of conflicts,4 Schiffer and
asserting several state law claims and claims              Kupersmith removed Poduslo as Director of
under 42 U.S.C. § 1983 for violation of her                Research and denied her unsupervised access
First and Fourth Amendment rights and the                  to the laboratory.
Fourteenth Amendment’s Due Process Clause.
The district court remanded all state law                                          II.
claims and granted summary judgment for de-                    In their state petition, plaintiffs sought an
fendants on the constitutional claims. We                  injunction ordering defendants not to destroy
affirm.                                                    DNA samples, brains, or medical records as-
                                                           sociated with the Alzheimer’s DNA Bank. In
                      I.                                   the event defendants were unable or unwilling
   Poduslo was hired in 1990 as a professor at             to allow Poduslo to continue genetic-based re-
TTUHSC. An October 3, 1989, letter from                    search as Director of Research, plaintiffs
the Chairman of TTUHSC2 noted his recom-                   sought the return of their DNA samples and
mendation to the dean of the school that Po-               their deceased relatives’ DNA samples and/or
duslo be offered a tenured faculty position, be
provided with laboratory space and a supply
                                                              3
                                                                The letter was from Bernhard Mittemeyer,
                                                           then the dean.
   *
     Pursuant to 5TH CIR. R. 47.5, the court has
                                                              4
determined that this opinion should not be pub-                 The exact nature and cause of the conflicts is
lished and is not precedent except under the limited       disputed, though we are bound, for purposes of this
circumstances set forth in 5TH CIR. R. 47.5.4.             review, to accept Poduslo’s characterization. It is
                                                           undisputed that the conflicts culminated in
   2
     The letter was from Joseph Green, then a              Poduslo’s halting all research two days before she
professor and the chairman of TTUHSC.                      was dismissed from the DNA Alzheimer’s Bank.

                                                       2
brains.                                                 concluded that defendants were entitled to
                                                        qualified immunity with respect to Poduslo’s
    Poduslo argued that defendants, acting un-          liberty interest claims, because defendants did
der color of state law, deprived her “of a lib-         not deprive her of the right to pursue her
erty interest without due process and violated          occupation, the mere change in status did not
her constitutional right of association and her         violate her liberty interest in future
First Amendment rights to academic freedom              employability, and, in any event, she was
by their actions, all in violation of the First,        provided due process through the grievance
Fourth and Fourteenth Amendments.” Podus-               procedure.
lo asserted that although she was a tenured full
professor, the defendants removed her as Di-                                   III.
rector of Research, limited her access to the                                  A.
laboratory and to charts, and instructed                    We review a summary judgment de novo,
laboratory assistants not to talk to her on             using the same standard applicable in the dis-
threat of termination.        Poduslo sought            trict court. Olabisiomotosho v. City of
compensation for the damage to her ability to           Houston, 185 F.3d 521, 525 (5th Cir. 1999).
research, the damage to her reputation, and the         “After consulting applicable law in order to
mental anguish caused by the defendants’                ascertain the material factual issues, we
actions.                                                consider the evidence bearing on the issues,
                                                        viewing the facts and the inferences to be
   After filing an answer setting forth the af-         drawn therefrom in the light most favorable to
firmative defense of qualified immunity, de-            the nonmovant.” Id. “Summary judgment is
fendants removed to federal court, whereupon            properly granted if ‘the pleadings, depositions,
plaintiffs moved to remand. After remanding             answers to interrogatories, and admissions on
the state claims, the district court ordering Po-       file, together with the affidavits, if any, show
duslo to file a reply to the invocation of              that there is no genuine issue as to any material
qualified immunity, then granted defendants’            fact and that the moving party is entitled to
motion for summary judgment.                            judgment as a matter of law.’” Id. (quoting
                                                        FED. R. CIV. P. 56(c)).
   The district court determined that Poduslo
did not have a property interest in her job as-             The doctrine of “[q]ualified immunity pro-
signment as laboratory director, that the               tects government officials performing
alleged conversion of her personal property             discretionary functions from civil liability if
did not violate her procedural due process              their conduct violates no clearly established
rights because adequate state post-deprivation          statutory or constitutional right of which a
remedies existed, that the alleged conversion           reasonable person would have known.” Evans
did not violate her substantive due process             v. Ball, 168 F.3d 856, 860 (5th Cir. 1999).
rights because she had presented no evidence            We conduct a bifurcated analysis: “First, a
that the deprivation was arbitrary or                   court must determine whether the plaintiff has
capricious, and that she had failed to overcome         alleged the violation of a constitutional right.”
the qualified immunity defense because she had          Glenn v. City of Tyler, 242 F.3d 307, 312 (5th
tendered no evidence that defendants had                Cir. 2001). Second, we decide whether “the
acted unreasonably.        The court further            conduct was objectively reasonable in light of


                                                    3
clearly established law at the time that the              doctrine is meant to protect the state from
challenged conduct occurred.” Id. “A right is             liability for failing to provide predeprivation
‘clearly established’ if its contours are                 process in situations where it cannot anticipate
‘sufficiently clear that a reasonable official            the need for such process (when actions are
would understand that what he is doing                    random and unauthorized).”          Brooks v.
violates that right.’” Cozzo v. Tangipahoa                George County, 84 F.3d 157, 165 (5th Cir.
Parish Council-President Gov’t, 279 F.3d                  1996). If the state actors allegedly are acting
273, 284 (5th Cir. 2002) (quoting Anderson v.             in accord with official policy or customary
Creighton, 483 U.S. 635, 640 (1987)).                     procedures, the “random and unauthorized”
                                                          criteria are not satisfied.6
                       B.
   Poduslo contends that the district court                  Poduslo does not contend that the
erred in concluding that she has no civil rights          defendants were acting in accord with an
remedy for the allegedly intentional and                  official policy or customary procedure of
malicious seizure of her equipment and                    converting personal property contained in the
supplies kept in the laboratory.5 She argues              laboratory. The state could not have foreseen
that the availability of state court remedies             the unusual circumstances that led to
does not bar federal relief, because the                  defendants’ allegedly intentional deprivation of
conversion was not a random, unauthorized                 Poduslo’s personal property or the need for
act, but a deliberate exercise of power by                predeprivation process.          Though the
individuals who had lawful authority to                   defendants had the authority to control access
exclude her from the premises and separate her            to the laboratory, their intentional conversion
from her property. She states that defendants             of Poduslo’s private property was not
are not entitled to qualified immunity, because           authorized by the state. Because Poduslo has
they acted with deliberate indifference to her            available to her an adequate postdeprivation
constitutionally protected interests.                     remedySSa Texas state tort action for
                                                          conversionSSher procedural due process claim
                       1.                                 was properly dismissed.
    The Parratt/Hudson doctrine provides that
when a § 1983 plaintiff alleges he has been de-                                 2.
prived of property without due process of law                Poduslo’s allegations that the conversion of
by a state officer’s random and unauthorized              her property was malicious and a flagrant
intentional conduct, rather than by an es-                abuse of power also constitute a claim that she
tablished state procedure, there is no                    was deprived of her property without
infringement of procedural due process rights             substantive due process. “This substantive
if there is an adequate state post-deprivation
remedy. See Cozzo, 279 F.3d at 290. “The
                                                             6
                                                                See Alexander v. Ieyoub, 62 F.3d 709, 713
                                                          (5th Cir. 1995) (concluding that the “allegation
   5
     Poduslo has failed to brief on appeal, and           that the Defendants were acting in their customary
therefore has abandoned, her argument that she            manner of failing to timely institute a forfeiture
was deprived of her cell lines without due process.       proceeding negates the ‘random and unauthorized
See Yohey v. Collins, 985 F.2d 222, 224-25 (5th           conduct’ element needed for application of the
Cir. 1993).                                               Parratt/Hudson doctrine”).

                                                      4
component of the Fourteenth Amendment’s                from TTUHSC; and (3) defendants deprived
Due Process Clause protects individual liberty         her of copies of her research notes and
against certain government actions regardless          notebooks she had brought from her previous
of the fairness of the procedures used to              employment. Taken alone, these allegations
implement them.” McClendon v. City of                  might set forth a claim for arbitrary
Columbia, 305 F.3d 314, 322 n.5 (5th Cir.              deprivation. Poduslo admits, however, that
2002) (en banc) (internal quotation marks and          upon her departure from TTUHSC, defendants
citations omitted).                                    allowed her to take laboratory equipment for
                                                       which she had serial numbers, and items
        Regardless of the theory of liability          plainly ancillary to that serial-numbered
   that a plaintiff is pursuing, in order to           equipment.7
   state a viable substantive due process
   claim the plaintiff must demonstrate that              Defendants’ retention of items for which
   the state official acted with culpability           Poduslo could not demonstrate ownership was
   beyond mere negligence. The Supreme                 reasonably related to the l egitimate
   Court’s discussions of abusive executive            governmental interest of protecting state
   action have repeatedly emphasized that              property. This conduct does not rise to the
   only the most egregious official conduct            level of egregiousness required by our
   can be said to be arbitrary in the consti-          jurisprudence. Because Poduslo has failed to
   tutional sense. The Court has spoken of             create a genuine issue of material fact regard-
   the cognizable level of executive abuse             ing whether defendants arbitrarily deprived her
   of power as that which shocks the                   of her laboratory equipment and supplies, the
   conscience. In elaborating on the                   district court properly dismissed the
   constitutional concept of conscience                substantive due process claim.
   shocking, the Court has made it clear
   that the due process guarantee does not                                   IV.
   entail a body of constitutional law                    Poduslo asserts that the district court erred
   imposing liability whenever someone                 in determining that she was not
   cloaked with state authority causes                 constitutionally injured by the deprivation of
   harm. Liability for negligently inflicted           her contractual employment rights. Poduslo
   harm is categorically beneath the                   argues that although there may not be
   threshold of constitutional due process.            economic value in her job title, she lost
                                                       economic benefits when she was deprived of
Id. at 326 (internal quotation marks and               her supply budget, the support of a laboratory
citations omitted).                                    technician, and access to laboratory space.
                                                       She contends that by depriving her of these
   Poduslo cites three incidents as evidencing         economic benefits of her employment contract,
the arbitrary deprivation of her property:             defendants denied her the right to pursue her
(1) Defendants failed to return the property           profession as a scientist.
after she had detailed her property interests in
her pleading responding to the qualified
immunity defense; (2) defendants returned
only some of her property upon her departure              7
                                                           This admission comes in an affidavit filed with
                                                       Polduslo’s summary judgment response.

                                                   5
                       A.                                     linkage becomes between t hose
   To prevail on a claim based on denial of                   understandings and the Due Process
procedural or substantive due process,8 a                     Clause. See Mangaroo v. Nelson, 864
plaintiff must make a showing that he has been                F.2d 1202, 1206-08 (5th Cir. 1989). At
denied a constitutionally protected property                  some point the linkage is uncertain
interest. See Williams v. Texas Tech Univ.                    enough to justify qualified immunity for
Health Sciences Ctr., 6 F.3d 290, 294 (5th                    an official accused of breaking it.
Cir. 1993); Browning v. City of Odessa, 990
F.2d 842, 844 (5th Cir. 1993). To enjoy a                  Id. at 293-94.
property interest in employment, an employee
must “have a legitimate claim of entitlement,”                                    B.
created and defined by “existing rules or                     Poduslo entered into evidence the Octo-
understandings that stem from an independent               ber 3, 1989, letter from Green stating that he
source such as state law . . . .” Board of                 had recommended her appointment to a
Regents of State Colleges v. Roth, 408 U.S.                professorship, that he understood tenure
564, 577 (1972).                                           would be requested for her, that her salary
                                                           would be $66,000, that her moving expenses
   Under Texas law, employment is at-will un-              would be defrayed, and that she would be
less the employer “unequivocally indicate[s] a             furnished a supply budget of $20,000, support
definite intent to be bound not to terminate the           for a technician, and renovated space for two
employee except under clearly specified                    contiguous laboratories.       Poduslo also
circumstances.” Montgomery County Hosp.                    submitted the October 18, 1989, letter from
Dist. v. Brown, 965 S.W.2d 501, 502 (Tex.                  the dean that offered her a tenured
1998). TTUHSC’s policies expressly provide                 professorship and stated only that her starting
that the “[t]ermination of employment or                   salary would be $66,000 and that her moving
dismissal of a tenured faculty member . . . will           costs would be paid.
be only for cause.” Because Poduslo was a
tenured professor, she had a property interest                 The detailed and conditional October 3 let-
in her continued employment with TTUHSC.                   ter provides only an uncertain link to the Due
See Roth, 408 U.S. at 576-77.                              Process Clause. Id. at 293. It is apparent that
                                                           the letter was tentative and not an actual offer
   “An expectation of employment carries                   of employment. Furthermore, it nowhere indi-
with it some protected expectations as to a                cated that the protections of tenure, if
salary.” Williams, 6 F.3d at 293.                          ultimately granted to Poduslo, would extend to
                                                           the supply budget, support for a technician, or
   But the more detailed and conditional                   access to laboratory space.9
   the understanding becomes between em-
   ployer and employee, the weaker the
                                                              9
                                                                Poduslo held her position as Director of Re-
                                                           search, and received the concomitant supply budget
   8
    It is uncertain whether Poduslo asserts that she       and laboratory space, for more than ten years.
was deprived of a property interest without                Even if the October 3 letter were construed as a
procedural due process or without substantive due          promise to provide these accouterments, its
process, or both.                                                                               (continued...)

                                                       6
   Finally, the loss of her title, supply budget,                                    C.
laboratory space, and support for a technician                   Poduslo claims she was deprived, without
did not reduce her income.10 Because Poduslo                 due process, of her liberty interest in pursuing
had no cognizable property interest in the                   her chosen profession because of the loss of
supply budget, the support for a technician, or              her position as Director of Research.12 “A
the access to laboratory space, she has no due               person has a liberty interest in pursuing an oc-
process claim.11                                             cupation.”13 Poduslo, however, does not as-
                                                             sert that defendants invoked any regulation to
   9
                                                             bar her from all other public employment in
    (...continued)                                           state universities or somehow deprived her of
promise certainly was fulfilled initially and did not        a license to pursue her career as a scientist.
extend indefinitely.
                                                             See Roth, 408 U.S. at 573-74; Connelly v.
   10
      In his affidavit, Kupersmith indicated that            Comptroller of the Currency, 876 F.2d 1209,
Poduslo’s salary and stipend did not change as a             1214 (5th Cir. 1989). Her allegations do not
result of her being removed as Director of                   rise to the level required to implicate a liberty
Research, and that she maintained her position as            interest in employment.
a full professor with tenure. Poduslo does not
challenge this assertion on appeal.                             AFFIRMED.
   11
      Cf. Kinsey v. Salado Indep. Sch. Dist., 950
F. 2d 988, 997 (5th Cir. 1992) (en banc) (Plaintiff
does not have “a constitutionally protected
property interest in the non-economic benefit of
serving as superintendent.”); Jett v. Dallas Indep.
Sch. Dist., 798 F.2d 748, 754 (5th Cir. 1986),
modified on other grounds, 491 U.S. 701 (1989)
(stating that oral contract that did not address
specific duties did not “create a property interest in          11
                                                                  (...continued)
the intangible, noneconomic benefits of his                  administrators could have concluded, without
assignment as coach”); Kelleher v. Flawn, 761                treading on ground plainly protected by the
F.2d 1079, 1087 (5th Cir. 1985) (concluding that             Constitution, that Poduslo could be denied these
instructor demonstrated no property interest in              employment benefits, defendants would be entitled
teaching specific government classes where there             to qualified immunity on this claim.
was no contract guaranteeing the right to teach
those classes and the new assignments were                      12
                                                                   In the district court, Poduslo also based her
commensurate with her position).                             liberty interest claim on alleged damage to her rep-
                                                             utation and stigmatization that hindered her future
    Even if a property interest could be shown, it           employability. She has not raised this as a basis in
cannot be said, given the uncertainties underlying           this appeal. See Yohey, 985 F.2d at 224-25 (noting
this aspect of Poduslo’s employment relationship             that claims not asserted on appeal are abandoned).
with TTUHSC, that the law clearly established that
                                                                13
she had a constitutionally protected property                     Phillips v. Vandygriff, 711 F.2d 1217, 1222
interest in the supply budget, support for a                 (5th Cir. 1983) (citing authorities), modified in
technician, and access to laboratory space. See              other part on rehearing, 724 F.2d 490 (5th Cir.
Williams, 6 F.3d at 294. Because reasonable                  1984); see also Martin v. Mem. Hosp., 130 F.3d
                                     (continued...)          1143, 1148 (5th Cir. 1997).

                                                         7
