     Case: 13-60444      Document: 00512531873         Page: 1    Date Filed: 02/13/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                        United States Court of Appeals
                                                                                 Fifth Circuit


                                    No. 13-60444                               FILED
                                  Summary Calendar
                                                                        February 13, 2014
                                                                          Lyle W. Cayce
                                                                               Clerk
MARIA SALCIDO,

                                                 Plaintiff - Appellant
v.

UNIVERSITY OF SOUTHERN MISSISSIPPI; MARTHA SAUNDERS,
Individually and Officially; REBECCA WOODRICK, Individually and
Officially; CHARLES WEST, Individually and Officially,

                                                 Defendants - Appellees




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:11-CV-173


Before WIENER, OWEN, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff Maria Salcido appeals the district court’s grant of summary
judgment in favor of the University of Southern Mississippi; Dr. Martha
Saunders, individually and officially; Dr. Rebecca Woodrick, individually and
officially; and Dr. Charles West, individually and officially (collectively, “the
Defendants”) on her claims under 42 U.S.C. § 1983 that the Defendants


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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discriminated against her on the basis of race, national origin, and ethnicity,
and denied her specific constitutional rights. AFFIRMED.
                                     I.    Background
       Salcido, a foreign-born woman of Latin American origin, was a part-time
graduate student in the marriage and family therapy (“MFT”) program at the
University of Southern Mississippi (the “University”). To obtain a master’s
degree, students in the MFT program must complete 500 clinical hours by
providing therapy to clients at the university clinic or through an externship.
Salcido was the only Latino-born student in the class of thirteen students, and
she claims she was not given the same opportunities to accumulate the
required clinical hours as her American-born, Caucasian peers.
       Salcido also alleges that Drs. Hinton, Grames, and Adams 1 at various
times engaged in discriminatory actions and made discriminatory remarks to
her. Salcido claims that Hinton told her he wanted her to work exclusively
with Latino clients 2 and refused to provide her with an externship when she
requested one in the fall of 2008 3 so that she could gain the hours required to
graduate by August 2009. 4 Salcido also alleges that Adams repeatedly verbally


       1Salcido did not name these professors as parties to the suit. Grames was the MFT
program director. Adams was one of her professors, and Hinton assigned clinical hours and
externships.

       2 Salcido stated that Hinton told her she needed to be “in the right setting” for
completing her clinical hours and that this statement was clearly meant to indicate that she
could only have Latino clients. Hinton disputes that the statement indicated he wanted her
to exclusively treat Latinos; however, the Defendants do not deny that Hinton used that
phrase when discussing Salcido’s options.

       3 In his deposition, Hinton states that he could not provide Salcido with an externship
because externship positions are typically made one year in advance, and she did not request
one until a few months before she wanted to begin the externship. He also claims to have
offered her an externship in the spring 2009 semester, but Salcido turned it down.

       4 Because Salcido was a part-time student, graduating by August 2009 would have
been at least one year sooner than expected.
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                                     No. 13-60444
admonished her, which Salcido attributes to Adams’s belief that Salcido has a
language barrier.       Salcido also alleges that Adams learned of a critical
evaluation written by Salcido that was supposed to remain confidential and
afterwards retaliated against Salcido by treating her more harshly than other
students.
       Salcido complained to multiple administrators, including West.                 She
later filed a formal complaint with the AA/EEO office as well as the Office of
Civil Rights of the U.S. Department of Education (“OCR”). Woodrick met with
Salcido to begin the appeals process; during that meeting, Salcido informed
Woodrick that she had retained counsel. At that time, Woodrick forwarded the
complaint to the University’s attorney.              Woodrick also suspended her
investigation pending the outcome of the OCR’s investigation. After the OCR
inquiry found that the University had not violated Title VI with regard to her
allegations,     the   AA/EEO     investigation     was    closed    with    no   further
investigation.
       After the AA/EEO investigation was closed, the MFT department
proposed a plan to help Salcido complete her degree requirements, despite
having relocated to Wisconsin. She rejected the plan and wrote a letter to
Saunders reiterating her complaints. One month later, she filed this suit,
asserting various claims under §1983, including that the Defendants deprived
her of rights guaranteed by the First Amendment, Fourteenth Amendment
Due Process Clause, and Fourteenth Amendment Equal Protection Clause. 5
                                    II.   Discussion
      We review de novo a district court’s grant of summary judgment. Ibarra
v. United Parcel Serv., 695 F.3d 354, 355 (5th Cir. 2012). Summary judgment



       Salcido also asserted a state-law claim for breach of contract. That claim was later
       5

remanded to state court.
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                                  No. 13-60444
is appropriate if the moving party shows there is “no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” FED.
R. CIV. P. 56(a). Because the burden of production at trial would be on Salcido,
the Defendants need only demonstrate an absence of evidentiary support in
the record for her case. See Cuadra v. Hous. Indep. Sch. Dist., 626 F.3d 808,
812 (5th Cir. 2010). This court may “affirm a grant of summary judgment on
any grounds supported by the record and presented to the [district] court.”
Hernandez v. Velasquez, 522 F.3d 556, 560 (5th Cir. 2008).
         a. Section 1983 Individual Capacity Claims
      Salcido raised claims against Saunders, Woodrick, and West in their
individual capacities. To make out a § 1983 claim against the Defendants in
their individual capacities, Salcido must show that they were either personally
involved in the constitutional violations alleged or that their wrongful actions
were causally connected to the constitutional deprivation. Jones v. Lowndes
Cnty., Miss., 678 F.3d 344, 349 (5th Cir. 2012). Furthermore, supervisory
officials are only liable under § 1983 if they affirmatively participate in the acts
causing the constitutional violation or implement unconstitutional practices
that result in a constitutional injury. Wernecke v. Garcia, 591 F.3d 386, 401
(5th Cir. 2009). Supervisory officials are not subject to respondeat superior
liability under § 1983. Cozzo v. Tangipahoa Prish Council-President Gov’t, 279
F.3d 273, 286 (5th Cir. 2002).
              i.   Procedural Due Process
      Salcido argues that the Defendants deprived her of procedural due
process by denying her clinical hours and externships and by not following the
grievance procedures guaranteed by the University. To establish a procedural
due process claim, the plaintiff must show that she was “denied life, liberty, or
property protected by the Fourteenth Amendment.” Wilson v. Birnberg, 667
F.3d 591, 597 (5th Cir. 2012). Property or liberty interests can be created by
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                                      No. 13-60444
the policies and procedures of state universities. Bd. of Regents of State Colls.
v. Roth, 408 U.S. 564, 578 (1972). If a due process entitlement exists, the party
is entitled to “notice and an opportunity to be heard . . . at a meaningful time
and in a meaningful manner.” Gibson v. Tex. Dep’t of Ins.—Div. of Workers’
Comp., 700 F.3d 227, 239 (5th Cir. 2012) (citation and internal quotation
marks omitted).
       To create a due process entitlement, there must be no discretion in the
official and a reasonable expectation that the individual will receive the
protected property interest. See Hampton Co. Nat’l Sur. v. Tunica Cnty, Miss.,
543 F.3d 221, 226 (5th Cir. 2008). The MFT Handbook clearly states that the
faculty has the discretion to determine who qualifies for externships, based on
the student’s “clinical readiness,” which includes her “emotional maturity.”
Therefore, the district court properly held that there was no property interest
in clinical hours. Even if there were a property interest, there is no evidence
in the record that any of the Defendants, including West, who supervised the
department that housed the MFT program, were either directly involved in
denying Salcido clinical hours or implemented policies that deprived Salcido of
clinical hours. 6 See Wernecke, 591 F.3d at 401. Therefore, the district court
properly granted summary judgment in favor of the Defendants on Salcido’s
claim of due process deprivation regarding access to additional clinical hours
and externships.
       Salcido further claims that she was deprived of a constitutionally
protected property interest in the grievance procedures provided by various
student handbooks. See Whiting v. Univ. of S. Miss., 451 F.3d 339, 346 (5th
Cir. 2006) (state law procedural guarantees create a property interest). The


       6Indeed, the record indicates that Hinton was responsible for assigning clinical hours
and externships and that Hinton told Salcido he did not have an externship available for her
when requested.
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                                 No. 13-60444
MFT Student Handbook provides that a student with a grievance should make
an appointment with the department chair, and the Student Handbook states
that the department chair should “normally” be responsible for filing a
grievance after resolving an issue. The Student and Faculty Handbook further
provides a formal procedure for bringing complaints to the AA/EEO Office,
which explains that the AA/EEO director will investigate claims and make a
written notice of the decision. Finally, after the AA/EEO director makes her
decision, the complaining student can appeal the determination directly to the
President of the University within fifteen days.
      The district court correctly found that West did not violate any
procedural guarantee enumerated in the MFT Student Handbook: he met with
Salcido, as required. While the Student Handbook does suggest that the
department chair should normally file a grievance, it is discretionary and
therefore does not create a procedural right. See Hampton Co., 543 F.3d at
226; see also Whiting, 451 F.3d at 346 (stating that where a handbook states
an official should “normally” communicate a result by a particular date, the
word “normally” makes compliance with the deadline discretionary).
      The grievance procedures outlined by the various student handbooks do
not impose any duties on Saunders. As the University President, Saunders is
only involved in formal complaints at the time of appeal. While Salcido did
write a letter to Saunders, this letter was not written until after the events
took place, and Salcido never appealed the AA/EEO’s determination. Salcido
has not produced evidence that Saunders either participated in the alleged due
process violations or implemented unconstitutional practices that denied
Salcido of her due process rights; therefore, the district court properly granted
summary judgment in favor of Saunders on this issue. See Wernecke, 591 F.3d
at 401.


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                                     No. 13-60444
      Neither party disputes that Woodrick did not strictly follow the
procedures outlined in the Student and Faculty Handbook. Salcido filed her
AA/EEO complaint on June 2, 2009, and because Woodrick suspended her
investigation      pending   OCR’s    determination,   she    did   not   issue   her
determination in the timeframe provided by the Student and Faculty
Handbook, nor did she perform her own investigation.
      Woodrick invoked qualified immunity.           The burden is therefore on
Salcido to demonstrate the inapplicability of the defense. McClendon v. City
of Columbia, 305 F.3d 314, 323 (5th Cir. 2002).           Woodrick is entitled to
qualified immunity if her conduct was “objectively reasonable.”            Kipps v.
Caillier, 197 F.3d 765, 768 (5th Cir. 1999). The reasonableness of a defendant’s
actions must be judged from the perspective of a reasonable official in the same
situation with the same knowledge. Newman v. Guedry, 703 F.3d 757, 762
(5th Cir. 2012) (holding that an officer’s actions are judged from the perspective
of a reasonable officer confronted by the same facts and circumstances without
regard to intent or motivation).
      Salcido does not provide evidence that it is unreasonable to suspend an
investigation where there is a pending OCR hearing and the student has
retained counsel. See id. Accordingly, the district court did not err in finding
that Woodrick was entitled to qualified immunity with respect to Salcido’s
procedural due process claim and granting summary judgment on this issue.
             ii.     Substantive Due Process
      Substantive due process requires public officials exercising their
professional judgment to do so in a nonarbitrary and noncapricious manner.
Lews v. Univ. of Tex. Med. Branch at Galveston, 665 F.3d 625, 630–31 (5th Cir.
2011). Salcido claims that her substantive due process rights were violated
when the Defendants failed to provide her with the opportunity to obtain
sufficient clinical hours to obtain a master’s degree in the MFT program.         Her
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                                 No. 13-60444
claims fail for two reasons: (1) none of the individual defendants made
decisions in assigning her clinical hours, and (2) there is no constitutionally
protected property interest in receiving the clinical assignments or
externships. See Hampton Co., 543 F.3d at 226. Even assuming that Salcido
had a property interest in the clinical hours, West, who is the only defendant
associated with the MFT department, cannot be held purely vicariously liable
for the actions of his subordinates who denied Salcido her hours. Cozzo, 279
F.3d at 286. There is no evidence that he was directly involved in denying her
those hours or that he instituted any policies that would have led to those hours
being denied. Wernecke, 591 F.3d at 401. Therefore, the district court properly
granted summary judgment on this issue.
            iii.   Equal Protection
      Salcido makes two equal protection claims: that she was given fewer
clinical hours than non-Hispanic Caucasian and American-born students and
that the Defendants failed to remedy the unlawful discrimination. Salcido’s
first equal protection claim fails because none of the named Defendants made
decisions regarding clinical assignments and externships, and Salcido has not
provided competent evidence that they encouraged discriminatory behavior or
instituted policies that led to her receiving fewer clinical hours. See, Cozzo,
279 F.3d at 286; Wernecke, 591 F.3d at 401.     As to her second claim, Salcido
has provided no evidence that any departures from the grievance procedures
stemmed from discriminatory intent. See McFaul v. Valenzuela, 684 F.3d 564,
577 (5th Cir. 2012) (requiring plaintiffs to show that their treatment was
“different from that received by similarly situated individuals” and that the
treatment “stemmed from a discriminatory intent”). Nor has she shown that
other similarly situated individuals who engaged the grievance procedures
were treated more fairly. See id. The district court properly granted summary
judgment on this claim.
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                                  No. 13-60444
             iv.   First Amendment
      Salcido further claims she faced retaliation for criticizing Adams in a
confidential evaluation. Salcido’s First Amendment claim suffers from the
same flaw as her other claims: there is no evidence in the record showing that
the individual Defendants participated in, approved, or implemented policies
that caused her injuries. See Wernecke, 591 F.3d at 401. Furthermore, there
is no evidence in the record that the named Defendants were responsible for
revealing the evaluation. See id. Therefore, the district court properly granted
summary judgment on this issue.
         a. Section 1983 Claims Against the Defendants in their Official
            Capacities
      Section 1983 provides a cause of action when a “person” acting under the
color of law deprives an individual of rights ensured by the “[c]onstitution and
laws.” We have previously held that state universities are not “persons” under
§ 1983, and therefore, the statute does not provide a cause of action. Stotter v.
Univ. of Tex. at San Antonio, 508 F.3d 812, 821 (5th Cir. 2007); see also Lapides
v. Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 617 (2002). Therefore, the
district court properly granted summary judgment in favor of the University.
      Salcido also sued Saunders, Woodrick, and West in their official
capacities. Because an official-capacity suit for damages is treated as a suit
against the state entity, the district court properly granted summary judgment
in favor of Saunders, Woodrick, and West for any damages related to the
official capacity claims. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (“[A]n
official-capacity suit is, in all respects other than name, to be treated as a suit
against the entity. It is not a suit against the official personally, for the real
party in interest is the entity.” (internal citation omitted)). Although Salcido’s
claim for prospective non-monetary relief against the individual Defendants in
their official capacities is not barred by state sovereign immunity, see Nelson

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                                       No. 13-60444
v. Univ. of Tex. at Dall., 535 F.3d 318, 321–22 (5th Cir. 2008), she has not
identified an unconstitutional policy against which an injunction or other non-
monetary relief could issue. 7
AFFIRMED.




       7 She also fails to state a cognizable claim for relief in this regard. Her brief vaguely
alludes to the relief sought stating that she “has consistently asked . . . that USM be enjoined
to provide her with a work environment free of discriminatory conduct and that, as an
equitable remedy, she be provided the Degree she has earned by enduring the discriminatory
hardships described herein.” She fails to cite any authority supporting such “relief.” Gann v.
Fruehauf Corp., 52 F.3d 1320, 1328 (5th Cir. 1995)(failure to properly brief an issue waives
that issue). She specifically fails to cite any authority that the court appropriately could
compel the award of a degree for which a student, such as Salcido, admittedly has not yet
qualified.
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