     Case: 14-40081      Document: 00512823236         Page: 1    Date Filed: 11/03/2014




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

                                                                                FILED
                                      No. 14-40081                      November 3, 2014
                                                                           Lyle W. Cayce
MARIA ELENA PEREZ,                                                              Clerk


                                                 Plaintiff – Appellant,

v.

TEXAS A & M UNIVERSITY AT CORPUS CHRISTI; RACHEL A. MILLER
ROBERGE, Individually and in her Official Capacity; JULIE SCHWEIN
FOMENKO, Individually and in her Official Capacity; MARY JANE DEAN
HAMILTON, Individually and in her Official Capacity,

                                                 Defendants – Appellees.


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:13-cv-225


Before STEWART, Chief Judge, and JONES and HIGGINSON, Circuit
Judges.
PER CURIAM: *
       Plaintiff-appellant Maria Elena Perez sued Texas A&M University,
Corpus Christi and its employees, Rachel A. Miller Roberge, Julie Schwein
Fomenko, and Mary Jane Dean Hamilton, over her dismissal from a nursing
program. On appeal, Perez challenges the district court’s judgment dismissing


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                      No. 14-40081

her claims, brought pursuant to 42 U.S.C. § 1983, that Defendants violated her
rights to procedural and substantive due process under the Fifth and
Fourteenth Amendments. For the reasons herein, we AFFIRM.
               I.     FACTS & PROCEDURAL BACKGROUND
       Plaintiff-appellant Maria Elena Perez was a nursing student at Texas
A&M University, Corpus Christi (“the University”) from January 2011 until
she was dismissed in April 2012. In Fall Semester of 2011, Perez completed
coursework and a clinical rotation in her “Med Surge II” course but failed the
course after receiving an exam grade average below 75. After failing the course
the first time, Perez was required to retake both the classroom and clinical
portions of the course, so she again enrolled in Med Surge II in the Spring
Semester of 2012. According to course policy, in addition to receiving an exam
grade average below 75, students could also fail the course by receiving three
warnings during the semester.
       Perez received her first warning on February 20, 2012, from instructor
Julie Schwein Fomenko. The warning, which is included with and referred to
in Perez’s complaint, states: “Student has not completed and uploaded Hospital
Orientation which was due 1/27/2012. 1 Failure to complete these modules by
2/22/2012 will result in removal from current clinical rotation and inability to
begin clinical rotation for [Med Surge II].” Perez acknowledges that she did
not complete the Hospital Orientation by January 27, 2012.                    She alleges,
however, that: (1) because her rotation was in an elementary school setting,
she was not required to complete the Hospital Orientation; (2) the class
syllabus and student handbook do not state a January 27, 2012 deadline; (3)
other students had also not timely taken the orientation; and (4) “common



       1 The correct date of “1/27/2012” is written by hand over the date “2/27/2012” and the
correction is initialed.


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sense” dictates that the orientation was not required to be completed until the
start of her clinical rotation, which was March 2, 2012. The course syllabus
states that students are required to complete the Hospital Orientation and
does not exempt students participating in non-hospital clinical rotations.
      Perez received her second warning on April 12, 2012, from instructor
Rachel A. Miller Roberge for being late for her clinical rotation and for failing
to submit a care plan according to class guidelines. Perez acknowledges that
she was fifty-five minutes late to her clinical rotation. She alleges, however,
that: (1) she was unaware of the starting time for her clinical rotation because
she had been in court the prior day on a custody matter and “did not think
about checking the schedule”; (2) she attempted to make up the missed time
by skipping her lunch break; and (3) another student who was thirty minutes
late on the same day did not receive a warning. Perez also admits that the
care plan she originally submitted lacked several required categories. She
notes, however, that this occurred because she used the form for care plans
from the Fall 2011 Med Surge II class and that, after her third attempt to write
her care plan (her second attempt was also unsatisfactory), she earned a
passing grade on the assignment.
      Perez received her third and final warning from Roberge on April 20,
2012, for: (1) failing to correctly identify a patient’s blood pressure condition;
(2) failing to give a patient a full dosage of an injection; (3) failing to identify
which condition another patient’s medication treated; and (4) failing to identify
the reason why that second patient had been hospitalized. Perez concedes that
the factual bases for the third warning are true but provides several
explanations for her actions. Perez submits that she was not sure about the
patient’s blood pressure condition because she “was not given a chance to
prepare to give the morning medications.” She states that she made an “honest



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mistake” as to the dosage of an injection because Roberge made her “nervous
and distracted” when she did not have this information. She further states
that she did not know what condition the patient’s medication treated because
“it was very difficult to gather her thoughts under such stressful situation and
because [she] had not worked with that patient much.” Finally, Perez explains
that instead of providing her with a third warning, Roberge should have used
the skills remediation option available according to the official Nursing
Student Handbook.
       Because Perez received three warnings, she again failed the Med Surge
II course and was automatically dismissed from the University’s nursing
program. Perez requested a reinstatement, which the Nursing School denied.
Perez then appealed her dismissal to the University. The University held
three separate hearings on her appeal. Perez was not present at the first
hearing. Perez states that at the second hearing she “had counsel present” and
“had an opportunity to plead her case.” Neither Perez nor her counsel was
present during the third hearing at which Fomenko testified. Shortly after the
third hearing, the University denied Perez’s appeal.
       Perez filed the present suit in federal district court, asserting a variety
of federal and state law claims against the University, Roberge, Fomenko, and
Mary Jane Dean Hamilton (collectively, “Defendants”). 2 The district court
dismissed these claims under Federal Rule of Civil Procedure 12(b)(1) and (6).
On appeal, Perez challenges the dismissal of her claims, brought pursuant to
42 U.S.C. § 1983, that Defendants violated her rights to procedural and




       2 Perez’s complaint does not contain any allegations related to Hamilton. Because
Perez fails to plead Hamilton’s role in her expulsion, we affirm the district court’s dismissal
of Perez’s claims against Hamilton.


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substantive due process under the Fifth and Fourteenth Amendments of the
United States Constitution. 3
                          II.     STANDARD OF REVIEW
       “The grant of a motion to dismiss based upon qualified immunity is
reviewed de novo.” Williams-Boldware v. Denton Cnty., Tex., 741 F.3d 635, 643
(5th Cir. 2014) (citation omitted).
                                  III.    DISCUSSION
       In deciding whether a defendant is entitled to qualified immunity, we
apply a two-step analysis in which we consider: (1) “whether a constitutional
right would have been violated on the facts alleged,” and, if a violation is
established, (2) “whether the right was clearly established” at the time of
violation. Saucier v. Katz, 533 U.S. 194, 200 (2001) (citation omitted). The
plaintiff bears the burden “to prove that a government official is not entitled to
qualified immunity.” Wyatt v. Fletcher, 718 F.3d 496, 502 (5th Cir. 2013).
       Because Defendants sought qualified immunity in a motion to dismiss
under Rule 12(b)(6), we accept all well-pleaded facts as true and view those
facts in the light most favorable to the plaintiff. Stokes v. Gann, 498 F.3d 483,
484 (5th Cir. 2007) (per curiam) (citation omitted). “One of the most salient
benefits of qualified immunity is protection from pretrial discovery, which is
costly, time-consuming, and intrusive.” Backe v. LeBlanc, 691 F.3d 645, 648
(5th Cir. 2012) (citation omitted). Accordingly, before permitting discovery, a
court must first find “that the plaintiff’s pleadings assert facts which, if true,


       3  Perez does not appeal the dismissal of her claims under the Equal Protection Clause
of the Fourteenth Amendment, the Due Course of Law and Equal Rights Clauses of the Texas
Constitution, or the Texas Civil Rights Act, or her claims for breach of contract, defamation,
or intentional infliction of emotional distress. Perez also does not challenge the dismissal of
her § 1983 claims against the University and against the individual defendants in their
official capacity. To the extent that Perez intended to appeal the dismissal of these claims,
we hold that they are waived for inadequate briefing. See United States v. Whitfield, 590
F.3d 325, 346 (5th Cir. 2009).


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would overcome” a qualified immunity defense. Id. (internal quotation marks
and citation omitted).
       We first address Perez’s procedural due process claim and then turn to
her substantive due process claim. Because we conclude that Perez has failed
to survive the first prong of the qualified immunity analysis by alleging facts
that, if true, plausibly support her claims that her rights to procedural and
substantive due process were violated, we do not reach the second prong of the
analysis.
       A. Procedural Due Process
       The Fourteenth Amendment provides that no person shall be deprived
“of life, liberty, or property, without due process of law.” U.S. Const. amend.
XIV, § 1. 4 “To be entitled to the procedural protections of the Fourteenth
Amendment, [Perez] must . . . demonstrate that her dismissal from the school
deprived her of either a ‘liberty’ or a ‘property’ interest.” Bd. of Curators of
Univ. of Mo. v. Horowitz, 435 U.S. 78, 82 (1978). Neither the Supreme Court
nor our circuit has decided whether students have a liberty or property interest
in public higher education. See Smith v. Davis, 507 F. App’x 359, 362 (5th Cir.
2013) (per curiam) (unpublished) (“The [Supreme] Court has not held college
academic decisions implicate property or liberty interests, entitling a student
to constitutional due-process protections. Accordingly, our court has followed
suit.”). Defendants did not address this issue before the district court. Thus,
we assume, without deciding, for the purposes of our analysis herein that Perez
had protected property and liberty interests and look to what procedural
protections she was due. Id.


       4 Perez also asserts that Defendants violated her due process rights under the Fifth
Amendment. The Fifth Amendment’s Due Process Clause, however, applies only to actions
of the federal government, and the University is a state institution. See Morin v. Caire, 77
F.3d 116, 120 (5th Cir. 1996).


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      In Horowitz, the Supreme Court held that procedural due process
protections may vary depending on whether a university’s dismissal is
motivated by “disciplinary” or “academic” reasons. 435 U.S. at 86. If a public
university dismisses a student for “disciplinary reasons,” the student is not
entitled to a formal hearing but instead to “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 v. Lopez, 419 U.S. 565, 584
(1975)).   An academic dismissal, however, “calls for far less stringent
procedural requirements,” id., and “certainly does not require a formal
hearing.” Cf. Senu-Oke v. Jackson State Univ., 283 F. App’x 236, 239 (5th Cir.
2008) (per curiam) (unpublished). “[T]he determination whether to dismiss a
student for academic reasons requires an expert evaluation of cumulative
information and is not readily adapted to the procedural tools of judicial or
administrative decisionmaking.” Horowitz, 435 U.S. at 90.
      Perez first argues that the district court erred in characterizing her
dismissal as academic. We disagree. The record reflects that Perez’s dismissal
was academic because it “rested on the academic judgment of school officials
that she did not have the necessary clinical ability to perform adequately as a
[nurse] and was making insufficient progress toward that goal.” Id. at 89–90.
Further, Perez concedes that her dismissal was based on the fact that she
initially failed the Med Surge II course by receiving an exam grade average
below 75 and, after retaking the course, she failed a second time because she
exhibited a pattern of submitting work that was late, incomplete, or otherwise




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deficient, missed nearly an hour of her clinical rotation, and made multiple
mistakes while treating patients. 5
      Perez contends that her second warning was issued, in part, because she
was late for her clinical rotation and contends that tardiness is a disciplinary
issue. Courts have frequently concluded, however, that absences and tardiness
in the higher education context may relate to a student’s ability to perform
academically and professionally.            See Horowitz, 435 U.S. at 91 n.6
(“[T]imeliness may be as important [of a] factor in a school’s determination of
whether a student will make a good medical doctor as the student’s ability to
take a case history or diagnose an illness.”); Senu-Oke, 283 F. App’x at 240
(characterizing a student’s absence during the first day of orientation and
registration for an advanced degree program as “academic” because “[t]he
orientation was an important part of the cohort’s academic program and
included information regarding preparation for the dissertation”). Indeed, the
Med Surge II course syllabus, which Perez attached to and referenced in her
complaint, provides that “[s]tudents in a professional nursing program must
function with the legal, moral, and ethical standards of the profession” and
that such standards “guide practice.” Clinical attendance is listed among the
applicable professional standards.          Accordingly, the record supports the
district court’s conclusion that Perez’s dismissal was academic in nature.
       When a student is dismissed for academic reasons from a state
institution of higher education, procedural due process under the Fourteenth
Amendment requires only that the student be “informed” of the “faculty’s
dissatisfaction with her clinical progress” and that the school’s ultimate

      5  Perez argues that because she received course feedback in the form of a “warning,”
rather than through a grade deduction, Defendants’ reasons for failing her must have been
disciplinary. The applicable case law does not support such a narrow interpretation of what
is considered “academic” decisionmaking. See, e.g., Horowitz, 435 U.S. at 91 n.6; Senu-Oke,
283 F. App’x at 240.


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decision to dismiss her be “careful and deliberate.” See Horowitz, 435 U.S. at
85. Perez acknowledges that she was aware of her unsatisfactory academic
status. Perez knew from the course syllabus that she was required to obtain a
minimum average exam score of 75 in order to pass the course and also knew
that, if she failed to do so, she would have to retake the course. Perez also
knew from her course syllabus that her receipt of three warnings in the course
would “lead to failure of the clinical rotation and therefore, failure of the entire
course” and that there were “[o]ther offenses, which depending on severity,
may lead to immediate failure of the course.” The offenses that could lead to
immediate failure included “a pattern of lack of accountability for class, clinical
and lab skills preparation, [and] unsafe or unprofessional practices or
behaviors”—all behaviors about which Perez received warnings. Perez was
given written notices explaining the basis for each warning she received.
Finally, even after she was dismissed, Perez had the opportunity to apply for
reinstatement and to file an appeal.            Perez took advantage of both
opportunities and provided written and in-person testimony in support of her
appeal. Senu-Oke, 283 F. App’x at 240 (stating that an individual dismissed
for academic reasons was not entitled to a face-to-face meeting).
      Accepting Perez’s allegations as true and viewing those allegations in
the light most favorable to her, see Stokes, 498 F.3d at 484, we nevertheless
conclude that the University provided Perez with adequate notice of her poor
academic status and used a careful and deliberate process in dismissing her.
See Horowitz, 435 U.S. at 85. Consequently, we affirm the district court’s
dismissal of Perez’s procedural due process claims. Id.
      B. Substantive Due Process
      Next, Perez argues that her dismissal violated her substantive due
process rights. In Ewing, the Supreme Court stated that “[w]hen judges are



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asked to review the substance of a genuinely academic decision . . . they should
show great respect for the faculty’s professional judgment.” Regents of Univ.
of Mich. v. Ewing, 474 U.S. 214, 225 (1985).         Universities 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 [her] prospects for success in [her chosen] profession.”
Id. at 228 n.14; see also Horowitz, 435 U.S. at 92 (“Courts are particularly ill-
equipped to evaluate academic performance.”). Courts may not override an
academic decision “unless it is such a substantial departure from accepted
academic norms as to demonstrate that the person or committee responsible
did not actually exercise professional judgment.” Ewing, 474 U.S. at 225.
      Perez has failed to allege facts that, taken as true, demonstrate that
Defendants violated her right to substantive due process. Perez offers a variety
of explanations for her actions but does not dispute the majority of the factual
bases that Defendants provided for her dismissal. Perez acknowledges that,
when she first took her Med Surge II course, she did not receive the minimum
exam grade average required to pass the course. She further acknowledges
that, when she retook the course, she did not complete her Hospital
Orientation to her instructor’s satisfaction, showed up nearly an hour late to
her clinical rotation, failed to submit a care plan according to class guidelines,
incorrectly identified a patient’s blood pressure condition, failed to give a
patient a full dosage of an injection, and failed to identify the reasons for
another patient’s medication and hospitalization.
      In light of these facts, we cannot say that Perez’s dismissal was so
substantial a departure from accepted academic norms as to demonstrate that




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Defendants did not actually exercise professional judgment. See Id. at 225. 6
Accordingly, we also affirm the district court’s dismissal of Perez’s substantive
due process claims.
                                  IV.    CONCLUSION
       For the foregoing reasons, the district court’s judgment is AFFIRMED.




       6Perez also alleges that Fomenko made multiple false statements at the third appeal
hearing and contends that these statements affected the University’s denial of her appeal.
As previously discussed, however, Perez did not have a constitutional right to a formal
hearing on her academic dismissal, and she fails to explain how statements made at a hearing
not mandated by due process nonetheless implicate her due process rights. See Horowitz,
435 U.S. at 85-86.



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