                                                                     F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                      JUL 18 2000
                UNITED STATES COURT OF APPEALS
                                                                 PATRICK FISHER
                                                                           Clerk
                             TENTH CIRCUIT



SHARON G. TROTTER,

           Plaintiff - Appellant,
     v.                                            No. 99-2109
THE REGENTS OF THE
UNIVERSITY OF NEW MEXICO;
UNIVERSITY OF NEW MEXICO
SCHOOL OF MEDICINE; WILLIAM
L. ANDERSON, Ph.D., individually
and in his capacity as Chair of the
Committee on Student Promotions and
Evaluations, University of New
Mexico School of Medicine; LINDA J.
McGUFFEE, Ph.D., individually and
in her capacity as Chair, Education
Council, UNM School of Medicine;
SAMUEL SCOTT OBENSHAIN, MD,
individually and in his capacity as
Associate Dean for Undergraduate
Medicail Education, UNM School of
Medicine; RICHARD E. PECK,
individually and in his capacity as
President of the University of New
Mexico; PAUL ROTH, MD,
individually and in his capacity as
Dean, UNM School of Medicine,

           Defendants - Appellees.


                Appeal from the United States District Court
                      for the District of New Mexico
                    (D.C. No. CIV-98-428-LJ/WWD)
Dennis W. Montoya, Montoya Law Offices, Rio Rancho, New Mexico, for
Plaintiff-Appellant.

Randolph B. Felker, Felker, Ish, Ritchie & Geer, P.A., Santa Fe, New Mexico, for
Defendants-Appellees.


Before TACHA, McWILLIAMS, and MAGILL, * Circuit Judges.


MAGILL, Circuit Judge.


      This appeal requires us to decide whether public university officials who

dismiss a medical student for inadequate academic performance are entitled to

qualified immunity from suit for alleged violations of the student's due process

rights under the Fourteenth Amendment. For reasons to be discussed, we answer

yes and affirm the judgment of the district court 1 dismissing plaintiff's claims.



                                I. BACKGROUND

A. Sharon Trotter's Academic Career

      Sharon Trotter was academically unsuccessful at the University of New

Mexico Medical School (Medical School) during her four years as a student. In a


      *
       Honorable Frank Magill, Senior Circuit Judge, United States Court of Appeals for
the Eighth Circuit, sitting by designation.

      The Honorable Leroy Hansen, United States District Judge for the District of New
      1

Mexico.

                                          -2-
letter dated February 12, 1996, the Medical School dismissed Trotter for poor

academic performance. After Trotter filed a lawsuit challenging her dismissal,

the Medical School reinstated her subject to meeting certain academic conditions.

However, Trotter's poor academic performance compelled the Medical School to

dismiss Trotter a second time. Trotter appealed this second dismissal to the

Education Council (Council), a legislative committee administered by the Medical

School's Office of Education. At an academic hearing held on June 4, 1996, the

Council upheld Trotter's dismissal. Trotter appealed the Council's decision to

Paul Roth, Dean of the Medical School. Dean Roth overturned her dismissal,

contingent upon Trotter meeting minimum academic requirements.

      On approximately January 6, 1997, Dean Roth again expelled Trotter for

failing to meet the academic conditions of her reinstatement. Trotter

acknowledges that Dean Roth warned her that she was not meeting the conditions

of her probationary reinstatement approximately two weeks before he expelled her

for the third and final time from the Medical School for poor academic

performance. Richard Peck, President of the University of New Mexico

(University), reviewed and upheld Trotter's third dismissal. Trotter

unsuccessfully requested the University's Board of Regents to review President

Peck's decision.




                                        -3-
      Trotter also filed a complaint challenging her dismissal with the United

States Department of Education, Office for Civil Rights (OCR). After performing

an investigation, the OCR concluded that "the University's actions were based on

[Trotter's] continued poor academic performance . . . . It is clear that the

University offered her all available due process appeal rights and she was

afforded numerous opportunities to correct [her] academic deficiencies. There is

no evidence of any substantive departure from the Due Process procedures."



B. Procedural History

      On April 10, 1998, Trotter filed a complaint in federal district court

alleging denial of due process. On August 3, 1998, Trotter filed her First

Amended Complaint. Defendants moved to have her complaint dismissed on

September 18, 1998, on the grounds of qualified and absolute immunity. At a

hearing held on January 27, 1999, the district court granted the defendants'

motion. At the conclusion of the hearing, the district court granted Trotter leave

to file a substitute motion to amend her complaint within ten days. Trotter filed

such a motion on February 2, 1999. On March 31, 1999, the district court denied

Trotter's motion to amend and dismissed her action with prejudice. Trotter filed

her notice of appeal on April 13, 1999. This appeal followed.




                                          -4-
                                     II. ANALYSIS

A. Timeliness of the appeal

      Federal Rule of Appellate Procedure 4(a) provides that the notice of appeal

in civil cases must be filed within thirty days of the entry of the judgment or order

appealed from. See Fed. R. App. P. 4(a)(1). Appellees maintain we lack

jurisdiction to review the dismissal of Trotter's claims because she failed to file

her notice of appeal within thirty days of the district court's January 27 order.

Because the filing of a timely notice of appeal is "mandatory and jurisdictional,"

Budinich v. Becton Dickinson & Co., 486 U.S. 196, 203 (1988), we must

determine, as a threshold matter, whether the notice of appeal was timely. See

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 379 (1981) (holding that

once an appellate court determines a notice of appeal is untimely, the court "lacks

discretion" to review the merits).

      Under the Federal Rules of Appellate Procedure, "[a] judgment or order is

entered within the meaning of Rule 4(a) when it is entered in compliance with

Rule 58 . . . ." Fed. R. App. P. 4(a)(7). Rule 58 of the Federal Rules of Civil

Procedure provides that "[e]very judgment shall be set forth on a separate

document." Fed. R. Civ. P. 58. The purpose of this rule is to eliminate confusion

about when the clock for an appeal begins to run. See Bankers Trust Co. v.


                                          -5-
Mallis, 435 U.S. 381, 384 (1978) (per curiam). In the past, we have stressed the

importance for district courts to abide by Rule 58 and to apply it mechanically by

routinely entering a separate final judgment when the court resolves all

outstanding issues. See United States v. City of Kansas City, 761 F.2d 605, 606-

07 (10th Cir. 1985). However, because Rule 58 was designed solely to eliminate

uncertainty, "[t]he separate document rule does not apply . . . where there is no

question about the finality of the court's decision." Clough v. Rush, 959 F.2d

182, 185 (10th Cir. 1992) (quotation and citation omitted). Thus, "orders

containing neither a discussion of the court's reasoning nor any dispositive legal

analysis can act as final judgments if they are intended as the court's final

directive and are properly entered on the docket." Id.

      The district court's January 27 order dismissing plaintiff's claims does not

meet Rule 58's requirements. The order granted Trotter express leave to file a

motion to amend her complaint within ten days from entry of the order. This

order clearly shows that the district court did not consider its January 27 order to

be a final order disposing of the entire action. The district court's order suggests

that it believed Trotter could possibly resurrect her claims against the defendants

by amending her complaint to allege new facts or causes of action. Thus, the




                                          -6-
January 27 order should not be considered a final judgment for purposes of Rule

58. 2

        Regardless of whether the district court's January 27 order should be treated

as an entry of final judgment, Trotter's filing of a Rule 15 motion under the

Federal Rules of Civil Procedure within the ten-day period for filing Rule 59(e)

motions tolled the time for filing a notice of appeal. See Quartana v. Utterback,

789 F.2d 1297, 1300 (8th Cir. 1986). Under Rule 4(a), if a timely Rule 59 motion

is made within ten days from the entry of judgment, the time for appeal is

measured from the entry of the order ruling on the Rule 59 motion. See Fed. R.

App. P. 4(a)(5). Regardless of how it is styled, courts consider a motion filed

within ten days of the entry of judgment that questions the correctness of the

judgment to be a Rule 59(e) motion. See Vreeken v. Davis, 718 F.2d 343, 345

(10th Cir. 1983). Thus, we have treated motions for leave to file an amended

complaint as motions made pursuant to Rule 59 for purposes of Rule 4. See id.;

see also Quartana, 789 F.2d at 1300 (treating appellant's motion to amend her

complaint as a Rule 59 motion for purposes of tolling the time period for filing a

notice of appeal). Thus, assuming that the district court's January 27 order was a

final judgment, Trotter's filing of a motion for leave to amend her complaint



       Our conclusion is consistent with the Supreme Court's instruction that Rule 58
        2

"should be interpreted to prevent loss of the right to appeal." Bankers Trust, 435 U.S. at
386.

                                            -7-
within ten days of the January 27 order effectively tolled the running of Rule

4(a)'s clock for filing a notice of appeal. The period for filing a notice of appeal

began when the district court entered its March 31 order denying Trotter's motion

for leave to amend. Trotter filed her notice of appeal on April 13th, well within

the thirty day limit set forth in Rule 4(a). Thus, we find Trotter's appeal timely

and proceed to review appellees' next jurisdictional challenge.



B. Failure to Designate Orders Appealed From

      Federal Rules of Appellate Procedure 3(c)(1)(B) provides that a notice of

appeal must "designate the judgment, order or part thereof being appealed from."

Fed. R. App. P. 3(c)(1)(B). Trotter filed her notice of appeal on April 13, 1999,

stating that she was appealing "from the dismissal entered herein by the Court."

Her notice did not specifically reference the district court's January 27 or March

31 orders. Appellees maintain that Trotter's notice of appeal was ineffective

under Rule 3(c)(1)(B). We reject appellees' argument.

      In Denver & Rio Grande Western R.R. v. Union Pacific R.R., 119 F.3d 847

(10th Cir. 1997), we held that "[w]hen a notice of appeal fails to designate the

order from which the appeal is taken, our jurisdiction will not be defeated if other

papers filed within the time period for filing the notice of appeal provide the

'functional equivalent' of what Rule 3 requires." Id. at 849 (citation omitted).


                                          -8-
More specifically, we held that a docketing statement filed within the time limits

for filing a notice of appeal which "clearly describe[s]" the issues on appeal

serves as the "functional equivalent" of a properly drafted Rule 3 notice of appeal.

See id. In this case, Trotter's docketing statement clearly set forth the issues on

appeal, and, thus, appellees had notice of the subject of the appeal, had copies of

the pertinent orders, and suffered no prejudice from Trotter's alleged failure to

specifically reference the orders from which she appealed.



C. Qualified Immunity

      Qualified immunity shields "government officials performing discretionary

functions . . . ' from liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of which a reasonable

person would have known.'" Wyatt v. Cole, 504 U.S. 1827, 1832 (1992) (quoting

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A plaintiff "must demonstrate a

substantial correspondence between the conduct in question and prior law

allegedly establishing that the defendant's actions were clearly prohibited."

Hannula v. City of Lakewood, 907 F.2d 129, 131 (10th Cir. 1990). Thus, in order

to defeat defendants' motion for qualified immunity, Trotter must demonstrate

that the defendants violated clearly established federal law when they dismissed

her because of poor academic performance.


                                          -9-
      A court evaluating a claim of qualified immunity "must first determine

whether the plaintiff has alleged the deprivation of an actual constitutional right

at all, and, if so, proceed to determine whether that right was clearly established

at the time of the alleged violation." Conn v. Gabbert, 526 U.S. 286, 290 (1999).

Trotter must demonstrate that her dismissal from the Medical School deprived her

of either a "liberty" or a "property" interest created by New Mexico state law.

See Board of Curators of the Univ. of Mo. v. Horowitz, 435 U.S. 78, 82 (1978).

Trotter in her written briefs and at oral argument failed to identify any clearly

established law supporting her claim that she held a "property" or "liberty"

interest in continued enrollment at the Medical School despite her academic

failures. Even assuming that Trotter held such an interest, she failed to identify

any clearly established law requiring more process than she received before the

Medical School dismissed her. Indeed, the relevant caselaw suggests that the

Medical School and its officials afforded Trotter far more process than

constitutionally required by the Fourteenth Amendment. See Horowitz, 435 U.S.

at 90; Schuler v. University of Minn., 788 F.2d 510, 514 (8th Cir. 1986) (holding

that the "University went beyond what was constitutionally required in granting

[the student] the opportunity to appear personally before the departmental

grievance committee, however informal the hearing.").




                                         -10-
      In Horowitz, the Supreme Court explored the federal procedural due

process rights required when a medical student is dismissed for academic reasons.

The Court recognized that there is a "significant difference between the failure of

a student to meet academic standards and the violation by a student of valid rules

of conduct. This difference calls for far less stringent procedural requirements in

the case of an academic dismissal." Horowitz, 435 U.S. at 86. Accordingly, the

Supreme Court held that the due process clause does not require that a student

dismissed from a state medical school for academic reasons be given a hearing.

Id. at 86-90. Rather, according to our Sister Circuit, the due process clause

requires no more than that "the student [have] prior notice of faculty

dissatisfaction with his or her performance and of the possibility of dismissal, and

[that] the decision to dismiss the student [be] careful and deliberate." Schuler,

788 F.2d at 514. The record clearly shows that Trotter was afforded prior notice

of the faculty's dissatisfaction with her poor academic performance. The number

of appeals and review hearings afforded Trotter convince us that the Medical

School's decision was careful and deliberate. In short, Trotter has failed to show

that any of the defendants violated her due process rights by dismissing her from

the Medical School for poor academic performance. Thus, we have little problem

affirming the district court's order granting the defendants' motion for summary

judgment based on qualified immunity.


                                         -11-
      Trotter also argues that the defendants violated clearly established law by

failing to comply with its own procedural regulations in the adjudication of her

grievance. We reject Trotter's argument. The record does not contain a copy of

the Medical School's due process statement. Thus, we cannot determine whether

the Medical School's own regulations afforded Trotter more procedural

protections than she received. However, even assuming that the Medical School

failed to follow its own regulations, we find that this failure would not, by itself,

give rise to a constitutional claim under the Fourteenth Amendment. See

Horowitz, 435 U.S. at 92 n.8 (suggesting that a university's failure to follow its

own academic rules does not, in itself, give rise to a due process violation);

Schuler, 788 F.2d at 515 (holding that a University's noncompliance with its own

grievance appeal procedures did not violate a student's right to procedural due

process); cf. Hill v. Trustees of Indiana Univ., 537 F.2d 248, 252 (7th Cir. 1976)

(holding that a professor's failure to comply with University's Student Code of

Conduct in failing a student as a penalty for plagiarism did not, in itself,

constitute a violation of the Fourteenth Amendment). In sum, Trotter has failed

to demonstrate that the defendants' actions violated any clearly established law.

Rather, the clearly established law shows that the numerous procedures the

Medical School afforded Trotter more than discharged its constitutional duty to

protect whatever interest she may have had in continued enrollment in the


                                         -12-
Medical School. Thus, we affirm the district court's order dismissing her claims

against defendants on the grounds of qualified immunity.



D. Denial of Trotter's Motion For Leave to Amend Her Complaint

      Trotter next challenges the district court's March 31 denial of her motion

for leave to file a substitute second amended complaint. We reject this argument.

The decision to grant leave to amend a complaint after the permissive period has

ended is well within the discretion of the trial court, particularly "when the party

seeking amendment [knew] or should have known of the facts upon which the

proposed amended [complaint] is based but failed to include them in the original

complaint." Pallottino v. City of Rio Rancho, 31 F.3d 1023, 1027 (10th Cir.

1994). Trotter has failed to convince us that the district court abused its

discretion in denying her motion for leave to file a substitute second amended

complaint. Thus, we affirm the district court's March 31 order denying Trotter's

motion for leave to amend.



                                III. CONCLUSION

      For the reasons discussed above, we affirm the district court's orders

dismissing plaintiff's claims in their entirety.




                                          -13-
