                                     UNPUBLISHED

                       UNITED STATES COURT OF APPEALS
                           FOR THE FOURTH CIRCUIT


                                       No. 17-1274


BASIL AL-ASBAHI,

                     Plaintiff - Appellant,

              v.

WEST VIRGINIA UNIVERSITY BOARD OF GOVERNORS; WEST VIRGINIA
UNIVERSITY SCHOOL OF PHARMACY; DR. ELIZABETH SCHARMAN, in
her official and individual capacities; DR. TERRENCE SCHWINGHAMMER, in
his official and individual capacities; DR. JAY L. MARTELLO, in his official and
individual capacities; DR. PATRICIA CHASE, in her official and individual
capacities; DR. LENA MAYNOR, in her official and individual capacities; DR.
MARY EULER, in her official and individual capacities; DR. CHRISTOPHER C.
COLENDA, in his official and individual capacities; DR. CHADRICK LOWTHER,
in his official and individual capacities,

                     Defendants - Appellees.



Appeal from the United States District Court for the Northern District of West Virginia, at
Clarksburg. Irene M. Keeley, Senior District Judge. (1:15-cv-00144-IMK)


Submitted: May 24, 2018                                            Decided: June 1, 2018


Before TRAXLER and AGEE, Circuit Judges, and SHEDD, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.
Bruce Fein, W. Bruce DelValle, FEIN & DELVALLE PLLC, Washington, D.C., for
Appellant. Monté L. Williams, Julie Ann Moore, Robert L. Bailey, STEPTOE &
JOHNSON PLLC, Morgantown, West Virginia, for Appellees.


Unpublished opinions are not binding precedent in this circuit.




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PER CURIAM:

       Basil Al-Asbahi filed a civil action against the West Virginia University Board of

Governors, West Virginia University School of Pharmacy, and several individuals

affiliated with the School of Pharmacy (collectively, “Defendants”), regarding his

academic dismissal from the school. He now appeals the district court’s order granting

summary judgment to Defendants on his substantive and procedural due process claims. ∗

We affirm.

       We “review[] de novo the district court’s order granting summary judgment.”

Jacobs v. N.C. Admin. Office of the Courts, 780 F.3d 562, 565 n.1 (4th Cir. 2015). “A

district court ‘shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Id. at 568 (quoting Fed. R. Civ. P. 56(a)). “A dispute is genuine if a reasonable jury could

return a verdict for the nonmoving party.” Jacobs, 780 F.3d at 568 (internal quotation

marks omitted). In determining whether a genuine issue of material fact exists, “we view

the facts and all justifiable inferences arising therefrom in the light most favorable

to . . . the nonmoving party.” Id. at 565 n.1 (internal quotation marks omitted).

       Assuming, without deciding, that Al-Asbahi alleged a protected liberty or property

interest, we conclude that he failed to allege a viable due process claim. See Regents of


       ∗
        Because Al-Asbahi does not challenge in his opening brief the district court’s grant
of summary judgment to Defendants on his other claims, he has waived appellate review
of those portions of the district court’s order. See Grayson O Co. v. Agadir Int’l LLC, 856
F.3d 307, 316 (4th Cir. 2017) (stating that argument not raised in opening brief is
considered waived).

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Univ. of Mich. v. Ewing, 474 U.S. 214, 222-23 (1985) (assuming without deciding that

students have a protected property interest in continued enrollment in institutions of higher

education, thus creating both substantive and procedural due process rights); see also Bd.

of Curators of Univ. of Mo. v. Horowitz, 435 U.S. 78, 84-85 (1978). On appeal, Al-Asbahi

first argues that the district court erred in concluding that the decision to dismiss him from

the pharmacy program did not violate his substantive due process rights. See Ewing, 474

U.S. at 225 (reviewing whether, based on the facts of the case, university’s decision to

dismiss student “was made conscientiously and with careful deliberation”).            As the

Supreme Court explained in Ewing, courts are not “suited to evaluate the substance of the

multitude of academic decisions that are made daily by faculty members of public

educational institutions.” Id. at 226. Thus, judges reviewing academic decisions “should

show great respect for the faculty’s professional judgment. Plainly, they may not override

it unless it is such a substantial departure from the accepted academic norms as to

demonstrate that the person or committee responsible did not actually exercise professional

judgment.” Id. at 225 (footnote omitted). Because the record reflects that Defendants’

decision to dismiss Al-Asbahi “was made conscientiously and with careful deliberation,

based on an evaluation of the entirety of [his] academic career,” id., we conclude that the

dismissal did not violate Al-Asbahi’s substantive due process rights.

       Al-Asbahi also contends that the district court erred in finding that his dismissal

from the pharmacy program did not violate his procedural due process rights. To state a

procedural due process claim, a plaintiff who has identified a protected property interest

must “demonstrate deprivation of that interest without due process of law.” Martin v.

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Duffy, 858 F.3d 239, 253 (4th Cir. 2017) (internal quotation marks omitted), cert. denied,

138 S. Ct. 738 (2018). In determining what process a student is owed, courts have

consistently distinguished between dismissal for disciplinary and academic reasons.

Horowitz, 435 U.S. at 87. Although a school is generally required to provide a student

notice and an opportunity to be heard before taking a serious disciplinary action against the

student, students are not entitled to a hearing before academic dismissal. Id. at 90-91. We

have thoroughly reviewed the district court’s order, the parties’ arguments on appeal, and

the materials submitted in the joint appendix, and conclude that the dismissal did not violate

Al-Asbahi’s procedural due process rights.

       Accordingly, we affirm the district court’s order. We dispense with oral argument

because the facts and legal contentions are adequately presented in the materials before this

court and argument would not aid the decisional process.



                                                                                 AFFIRMED




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